The State v. Potts
| Decision Date | 06 February 1912 |
| Citation | 144 S.W. 495,239 Mo. 403 |
| Parties | THE STATE v. F. W. POTTS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Reversed and remanded.
Clay & Davis and Burton for appellant.
(1) The court committed error in permitting the prosecuting attorney to indorse the name of the juror Miller upon the information and then excusing him from the panel of jurors. (2) It was error to permit the witness Walker to testify to having seen defendant and Cannon talking together frequently. (3) The court committed error in refusing defendant permission to show by the witness Walker, on cross-examination, that he had an arrangement or agreement, made by his attorney with the prosecuting attorney's office, whereby his case was to be dismissed in consideration of his turning State's evidence against defendant. 3 Wigmore on Evidence, sec. 2196; 4 Wigmore on Evidence, sec. 2321; Weinstein v. Reid, 25 Mo.App. 47; Fry v. Estes, 52 Mo.App. 45; Ehrhardt v. Stevenson, 128 Mo.App. 476. (4) The court committed error in permitting the witness Walker to testify as to what Cannon did in and about the devices in question, and also what he did in and about the room in which they were located. (6) The court committed error in refusing defendant permission to cross-examine the witness Walker about his being a fugitive from justice. O'Connor v Transit Co., 106 Mo.App. 220. (7) The court committed error in refusing defendant permission to cross-examine and show by the witness Walker that he took a woman to Raton, New Mexico, for the purpose of running a bawdy house, and that he was supported by said woman from her earnings as a bawd. O'Connor v. Transit Co., 106 Mo.App. 220; State v. Boyd, 178 Mo. 17. (8) The court committed error in permitting the State to show by the witness Walker that Charles Cannon knew, at the time the witness Walker was employed in the gambling house over the Club saloon, about the witness having made loaded dice, and to testify as to the purpose and object of making said dice, and to testify that on the evening of his arrest, shaped dice were furnished him by the keeper of the house and that said dice were in use, and to testify as to the kind and character of the dice. (9) The court committed error in refusing defendant permission to read in evidence, for the purpose of impeaching the witness Walker, his testimony given on the trial of Charles Cannon. Ess v. Griffith, 128 Mo. 63. (10) The cause should be reversed and remanded on account of the remarks of the prosecuting attorney and his assistant made during the argument of the case. State v. Snyder, 182 Mo. 523; State v. Newcomb, 220 Mo. 67; State v. James and Johnson, 216 Mo. 401. Instruction 14 does not properly declare the law. This instruction tells the jury, in so many words, that the witness Walker was an accomplice of defendant. If he was an accomplice of defendant, that was a fact to be found by the jury (and not the court) from the evidence in the case.
Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.
(1) Appellant in his brief makes the point that the court committed error in refusing appellant permission to show by the witness Walker, on cross-examination, that he had an arrangement, or agreement, made by his attorney, with the prosecuting attorney's office whereby the witness Walker's case, was to be dismissed in consideration of his turning State's evidence against appellant. The court permitted the appellant to interrogate this witness upon any communication had between the witness and the prosecuting attorney, or any of his assistants, but refused to permit the attorney for appellant to cross-examine the witness as to any communication had between the witness and his attorney. That the communication between client and attorney is privileged, cannot be gainsaid. Ehrhardt v. Stevenson, 128 Mo.App. 476; Elliott v. Kansas City, 198 Mo. 593. (2) Instruction 14, complained of by appellant, is a cautionary instruction, and the fact that the court told the jury that Walker is known in law as an accomplice, is a more favorable declaration of law than appellant was entitled to. The instruction then proceeds to inform the jury that the matters connecting appellant with the commission of the crime as charged against him, should be received with great caution. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. 1 Greenleaf on Evidence, sec. 380. (3) The argument of counsel in this case was proper. In one instance the assistant prosecuting attorney remarked that "it is not much trouble to convict these fellows." The court excluded this from the jury and told them not to take same into consideration. This was a rebuke to the assistant prosecuting attorney, and was all the court could do. An attorney has some latitude in drawing his conclusions. The trial court heard the argument and is better qualified to hear and determine the bounds of argument. The trial court can only review and withdraw the remarks from the jury. It is impossible for the court, or any other man, to prejudge what an attorney is going to say. In this case, what the attorney did say, if the court had not withdrawn same from the jury, was not error. Appellate courts should be slow in reversing a case on account of improper argument of counsel. To constitute a reversible ground, the argument should be so poisoned and the appellate court should believe that the argument alone was conducive to the verdict of guilty, and without it the verdict would have been an acquittal, before this court should convict the lower court for not performing its duty in this behalf.
At the June term, 1910, of the circuit court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming table and gambling device, commonly known as a crap table, was sentenced to imprisonment in the penitentiary for a term of three years, and appealed to this court.
The information was in two counts. The first count charged F. W. Potts, Charles Cannon and W. L. Smith with setting up and keeping a poker table, and the second count charged them with setting up and keeping a crap table. The defendant Potts was tried separately. The evidence for the State tended to show the following facts:
In the month of December, 1909, gambling games were carried on in a room over the Southern Club saloon in Webb City. The room was fitted up with gambling paraphernalia, consisting of poker tables, chips, cards, crap tables and dice. On the night of December 11th, the room was raided by the sheriff and the gambling paraphernalia was taken out of the room. At the time of the raid a large number of men were in the room, engaged in playing poker and craps for money. Charles Cannon was in the room. O. A. Walker, who testified as a witness for the State, was in charge of one of the crap tables. The defendant was in the saloon below.
There was evidence to the following effect, tending to connect the defendant with the setting up and keeping of the gaming tables and gambling devices: Cannon, who was generally in the room when the games were in progress, sometimes acting as dealer at one of the tables, and who usually furnished the dealers at the different tables with money to run the games, hired the witness Walker to run one of the crap tables and otherwise assist in running the games. On one occasion a dealer at one of the crap tables asked Walker to go to the saloon below and ask defendant to come upstairs. When the defendant arrived the dealer informed him he was about out of money, whereupon the defendant supplied him with money to use in the game. The games played on the crap tables were what are known as "bank games," that is, the players did not bet against each other, but against the "house." Defendant at another time carried money from the dealers at the tables to the saloon below and placed it in a safe behind the bar. On the day the raid was made, but earlier in the evening, defendant had acted as dealer at one of the tables. When the games were in progress the defendant was usually in the gambling room or in the saloon below, and in both places had frequent conversations with Cannon. When the defendant was in the gambling room, and Cannon was absent, the dealers at the tables went to defendant for information. On one of the crap tables found in the room there was a shipping tag, showing that the table had been shipped from Parsons, Kansas, to Pittsburg, Kansas, by F. Potts. Defendant had formerly lived in Parsons. The name "Potts" was also stamped on the covers of the poker tables.
At the close of the State's evidence, the prosecuting attorney elected to stand upon the second count, which related to the crap table.
The defendant, as a witness in his own behalf, denied that he had ever furnished any money to use in any of the games, denied that he was ever in the gambling room or ever put any money in the safe in the saloon, and denied that he had any interest in the gambling room or in the games operated there.
One of the owners of the Southern Club saloon testified that only he and his partner had access to the safe, and that defendant had never placed any money therein.
In the cross-examination of the defendant, the prosecuting attorney asked him what his business was in December, 1909. The question was objected to by the defendant on the ground that it was a matter not referred to in the examination in chief, and the court sustained the objection. During the prosecuting attorney's closing argument to the jury, he made the following remarks:
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