The State v. Hall

• Decision Date: 26 May 1910
• Citation: 128 S.W. 745,228 Mo. 456
• Court: Missouri Supreme Court
• Parties: THE STATE v. MONT HALL, Appellant

128 S.W. 745

228 Mo. 456

THE STATE v. MONT HALL, Appellant

Supreme Court of Missouri, Second Division

May 26, 1910

Appeal from Newton Circuit Court. -- Hon. B. G. Thurman, Judge.

Affirmed.

W Cloud and O. L. Cravens for appellant.

(1) The demurrer to the evidence should have been sustained, because the table was not adapted, devised and designed for poker playing in the manner that gambling was done upon it, and such was the trial court's view of the law as outlined in instruction 7. The table and slot device were entirely covered with cloth. The mere fact that this table was used does not make it a gambling device. Cards themselves have been held to be not a gambling device under the section under which this information is drawn, though they must be used in playing poker. The table used must be something more than an ordinary table, and the devices themselves must be employed. The use of the word table, a general word, or gambling table in the statute, is controlled by, and limited to, the specific and special kinds of tables and gambling devices used in connection therewith, as a roulette table, keno table, etc. Above and beyond all, it must be a gambling table. Under the ejusdem generis rule common tables are excluded, as are likewise tables with gambling devices where such devices are not employed in the game. State v Gilmore, 98 Mo. 206; State v. Bryant, 90 Mo. 534; State v. Mann, 2 Ore. 238. Before defendant can legally be convicted for complicity, the gambling device must be A B C, faro bank, E O, roulette, equality or keno, and no others, under the ruling in the Gilmore case. The mere setting up, or keeping for playing, of poker chips representing money, with ordinary playing cards, on a table, are not acts prohibited by the statute. And the setting up of a poker table on which are used poker chips and cards for gaming, is expressly held not to be within its prohibition. State v. Etchman, 184 Mo. 200; Miller v. U.S. 6 App. D. C. 6; Gillen v. State, 55 S.W. 48; Tully v. State, 114 S.W. 920; State v. Hamilton, 67 A. 836. State v. Mathis, 206 Mo. 604, does not conflict with our position. It is not contended by the State that defendant "set or kept" the gambling devices in question, but only that he permitted Thompson to do so. This does not make a case, and defendant should have been acquitted peremptorily. O'Blennis v. State, 12 Mo. 311. The defendant was tried on the theory that he was an accomplice with Thompson. But Thompson does not make a case against defendant under section 2194. The mere fact that these two were to run a gambling house and divide the winnings, does not entitle the State to convict under 2194. This is the whole case. It is nothing else but that. The only common purpose between the parties, reasonably inferable from any proof in the case, was to run a common gambling house. Such is in substance what Thompson shows so far as the defendant is concerned. That was the only crime which he aided, abetted or assisted in, or of which he could have been legally convicted. State v. Gilmore, 98 Mo. 206; Nuckolls v. Com., 32 Gratt. 884; State v. Hardin, 1 Kas. 474. The only conspiracy or common design proved was to run a gambling house and divide the winnings. This shows nothing in violation of section 2194, but does prove a violation of section 2197. The conviction ought not stand on proof of any acts by Thompson outside the common design. If he went further, and did other acts which amount to a crime under 2194, defendant cannot be convicted thereon. State v. May, 142 Mo. 135. (2) There is a total absence of proof showing that defendant "induced or enticed" any one to bet or play upon this table. It is true Thompson says that defendant "introduced" his friends there sometimes; that he played himself and sometimes had charge of the game. But this, while perhaps authorizing a submission of the question, along with the other evidence, as to whether defendant "permitted" playing, does not establish nor tend to establish, in even a remote degree, that defendant "induced or enticed" anyone to play. No evidence was offered as to inducing or enticing by defendant. The circumstances attending the alleged introduction of his friends into the room were not shown, and ought not to be guessed at by the jury. State v. Johnson, 111 Mo. 578; State v. Little, 67 Mo. 624; State v. Tice, 90 Mo. 112; State v. Weaver, 165 Mo. 1; State v. Callaway, 154 Mo. 91; State v. Bonner, 178 Mo. 424.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The court did not commit error in overruling the demurrer to the State's evidence, because there was ample evidence for the State that appellant was one of the keepers and proprietors of room 12 in the De Mont Hotel, and received one-half of the take-off, proceeds and winnings of the games played upon the table, and that the gambling device -- the table -- came within the provisions of the statute. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604. The Gilmore case, 98 Mo. 206, cited by appellant, is not in point. The prohibition in our statute includes "the setting up and keeping any kind of gambling table or gambling device adapted, designed and devised for the purpose of playing any game of chance for money or property." State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; Kelly's Crim. Law, sec. 950; R. S. 1899, sec. 2194; State v. Locket, 188 Mo. 418. (2) The evidence showed that there were games of chance played upon the table for money, that appellant was one of the keepers of the table, and that at the time of the raid by the sheriff a game was being played by eight persons who were caught in the act. The evidence of Thompson is uncontradicted as to the fact that appellant was a full partner in the business. (3) This court has often held that where there is substantial evidence to show the guilt of the accused, it will not attempt to weigh the evidence, but will adhere to the finding of the jury. State v. Smith, 190 Mo. 706; State v. Groves, 195 Mo. 452; State v. Matthews, 202 Mo. 148; State v. Tetrick, 199 Mo. 100.

OPINION

GANTT, P. J.

On March 24, 1909, the prosecuting attorney of Newton county filed an information with the clerk of the circuit court of said county, charging the defendant with having on the day of February, 1909, at the county of Newton, unlawfully and feloniously set up and kept a certain gambling table and gambling device, to-wit, one poker table, commonly so called, upon which cards, commonly called playing cards, were used, which said gaming table and gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and unlawfully and feloniously induced and permitted divers persons to bet and play at and upon and by means of said gaming table and gambling devices.

A change of venue was granted from the judge of the circuit court of Newton county, on account of alleged prejudice on the part of said judge against the defendant, and Honorable B. G. Thurman, judge of the Twenty-sixth Judicial Circuit, was selected to try the case.

The defendant was duly arraigned and entered his plea of not guilty and was put upon his trial on the 21st of October, 1909, and convicted, and his punishment assessed at two years in the penitentiary.

The evidence tended to show that the defendant was the owner of the DeMont Hotel at Seneca in Newton county, and had lived in said town since 1876; that in the fall of 1908, one R. C. Thompson, a professional gambler, who had gambled in Kansas and Oklahoma continuously for eight years last past, went to the defendant and arranged for room number twelve in his hotel. This room number twelve had been three years previous to this time occupied by a man by the name of Dan Stuckey, who had built and left in the room a gambling table with a slot or slide on top, in which the gamblers would deposit checks, which was called the bank or take-off of the person running the house. Dan Stuckey also left in this room about one hundred decks of common playing cards and divers red, white and blue poker chips. Thompson used this gambling paraphernalia, but the evidence was that this table had been covered by a cloth, and the slot or slit was not used, but Thompson in playing the game, instead of adding his chip, would not ante and kept his ante out as pay for the use of the room, which was called the "kitty" or "take-off," and that defendant and Thompson would divide the proceeds, or what Thompson would win in the game and the "kitty," equally. Thompson sold checks to the players as follows: the blue at $ 1.25, white at five cents, and the red at twenty-five cents, and the players would use these chips as money, and when the game was over any of the players having chips had them cashed by Thompson at the same price at which he sold them. If Thompson was not present to attend to the business, the defendant would do it. The door by which they entered the room number twelve was fastened by a spring lock, to which there were two keys, one of which was carried by Thompson and the other by the defendant. On February 9, 1909, the sheriff of Newton county raided this room and found nine persons and arrested eight of them. The defendant was the owner of all the gambling paraphernalia.

The evidence on the part of the State tended to show that games of poker for money were often played in this room from the time Thompson formed this partnership with the defendant in September, 1908, until the day of the raid by the sheriff. The evidence also tended to show that the defendant spent a large part of his time in this room. The usual custom was to sell two dollars' worth of chips to the players to start with, and if th...