Barada v. State

• Decision Date: 31 January 1850
• Citation: 13 Mo. 94
• Parties: BARADA & BARADA v. THE STATE.
• Court: Missouri Supreme Court

13 Mo. 94

BARADA & BARADA

v.THE STATE.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM BUCHANAN CIRCUIT COURT.

This is an indictment against the defendants, and one other person jointly, for permitting gaming in a building of which they had the possession and control. The defendants were found guilty by a jury, and a joint fine of fifty dollars was assessed against them.

EDWARDS and JONES, for Appellants. 1. The verdict and judgment of the court below, are joint against both defendants, when they should have been several and separate against each defendant, 10 Mo. R. 440, State v. Gay et al. 2. The offense in the indictment, must be proved as laid. Archbold's Crim. Pl. 98-9. The evidence does not show that a pack of playing-cards was even set up, or used in any building by any person, for the purpose of playing games of chance, for money or property, or that any money or property, was ever bet on any game of chance at any time, by any person, or that any game was ever played, in a building under the control or in possession of said defendants, or either of them; therefore the verdict and judgment of the court below, are contrary to law and evidence. 3. The witnesses speak of having seen gaming or gambling in a building, without stating the facts and circumstances which constitute an act of gaming, and its kind. The word “gaming” has an extensive legal meaning, and includes all the various kinds of games known to the law; such as E. O., roulette, chuckerluck, cribbage, faro-bank, horse-racing, &c., &c. The indictment charges, that defendants permitted a particular kind of device to be set up and used, yet the court and jury were not informed, by the witnesses, whether the kind of device, mentioned in the indictment, was used or not. To permit the judgment of the court below, to stand would be equivalent to saying, that a man might be indicted for stealing a horse, and that if a witness was to state on the trial, that he had committed larceny, that the evidence would be sufficient to warrant a conviction, without the witness stating the facts and circumstances necessary to show that an act of larceny had been committed, and its kind. 4. To constitute an act of gaming, there must be persons to play, and they must play some game of chance for money, or property, and these are things that must be proved. 5. The evidence clearly shows, that neither of said defendants had possession or control of the building spoken of.

ROBARDS, Attorney-General, for The State. 1. The act of permitting games of chance to be played in a building possessed by several persons, or under their control, is a joint offense for which they may be jointly indicted. 10 Mo. R. 441. 2. Though this is a joint verdict against the defendants, it should stand: 1st. Because no motion was made to set it aside, because it was a joint verdict. 2nd. Because the fine assessed against both, is the least that could, by law, be assessed against each, and is more favorable to them than the law ever contemplated. Mo. Digest, 906; 8 Mo. R. 64, 128. 3. There was no objection made to the giving or refusing of instructions, nor to the admission or rejection of evidence, and this court cannot look into such matters: neither can a motion for a new trial bring these questions before the court. 10 Mo. R. 515. 4. The evidence warrants the finding of the jury, and this court will not interfere with the verdicts of juries except in very palpable cases. 10 Mo. R. 676; 9 Mo. R. 50. 5. If there was any error committed in the court below, it was because the verdict was joint. This error, if any, is in favor of the defendants, and cannot be a source of complaint by them in this court. 7 Mo. R. 569; 9 Mo. R. 636.

RYLAND, J.

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