State v. Leaver

Decision Date02 June 1913
PartiesSTATE v. LEAVER et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

James Leaver and another were convicted of gaming, and they appeal. Reversed and remanded.

Don C. Carter, of Sturgeon, and N. T. Gentry, of Columbia, for appellant. E. C. Anderson, Pros. Atty., and George S. Starrett, both of Columbia, for the State.

JOHNSON, J.

On information of the prosecuting attorney of Boone county, James Leaver, Thomas S. Carter, and Wren Bugg were tried for a violation of section 4753, Rev. Stat. 1909. A nolle prosequi was entered as to Carter, and the jury returned a verdict of guilty as to the remaining defendants, assessing a fine of $150 against Leaver, and a fine of $50 against Bugg. Motions for a new trial and in arrest of judgment were filed and overruled, and both defendants appealed.

The information charged that "James Leaver, Thos. S. Carter, and Wren Bugg on or about the 20th day of December, 1911, at the county of Boone, state of Missouri, did unlawfully permit a certain gaming device commonly called a pool table, designed and used for the purpose of playing games of chance for money and property, to be used for the purpose of gaming in a certain building there situate and under the control and in the possession of said James Leaver, Thos. S. Carter, and Wren Bugg," etc. Carter owned a building in the city of Sturgeon in which a pool hall was being conducted, and also owned the pool tables, balls, and cues and other personal property used in the business. Leaver had leased the building and contents from Carter, and was the proprietor of the business. He was in other business which engrossed his attention during business hours, and he employed Bugg to run the pool hall during his absence. The evidence of the state discloses that Bugg while in full charge and control of the place allowed certain patrons to play a game called "Kelly pool" for money stakes. This game is played on a pool table with numbered billiard balls and cues, and a bottle containing very small balls numbered to correspond with the numbers on the billiard balls is used at the beginning of a game to assign to each player a particular ball in play. The player who first succeeds in pocketing his ball wins the game and the stakes. Leaver frequently spent his evenings at the pool hall, and had knowledge that Kelly pool was being played on the tables for money, but neither he nor Bugg participated in the gambling, nor received other remuneration than the usual fee charged for an ordinary pool game.

The offense prohibited by section 4753, Rev. Stat. 1909, "is the permitting any gaming device to be used for the purpose of gaming, in any house belonging to, occupied by, or under the possession, or control, by any one * * * if the defendant knowingly permitted the gaming device, described in the indictment, to be used for gaming purposes in his house, then he has violated the statute." State v. Dyson, 39 Mo. App. 297....

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