Lowry v. State

• Decision Date: 31 May 1827
• Citation: 1 Mo. 722
• Parties: LOWRY v. THE STATE.
• Court: Missouri Supreme Court

1 Mo. 722

LOWRY

v.THE STATE.

Supreme Court of Missouri.

May Term, 1827.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY

M'GIRK, C. J.

This was an indictment, containing two counts, on the statute respecting crimes and misdemeanors. The first count is on the 87th section, which says, that if any person shall set up or keep any table or tables, commonly called A. B. C., Faro, E. O., Roulette, Equality, or any other kind of gaming table, at which any game of chance shall be played, for property or money, and induce or permit any person or persons to bet against said bank, such person, on conviction, shall be punished, &c. The indictment on this suit charges, that Lowry did set up a certain common gambling table, commonly called Loto, at which a certain game of chance was played, for money, contrary to the form of the statute, &c. The 89th section says, that if any person or persons shall suffer any of the gambling tables above enmerated, or other gaming table or gambling device, at which any game of chance is played, or money or property, won or lost, to be set up or used in his or her house, &c., of which he or they at the time hath the possession, or use, such person shall suffer, &c.

The count in the indictment, on this section, charges in the words of the statute, that the defendant did set up in his house, a certain gambling device, called Loto, at which a game of chance was played for money, and that said defendant did then and there suffer and permit said game to be played as aforesaid. The court instructed the jury, that the game of Loto was within both sections of the statute, and the jury found the defendant guilty on both counts, and the court gave judgment on both counts; the judgment is entire, and the sections each provide different punishments. The defendant brought the cause here, and seeks to reverse the judgment, on the ground, that the game of Loto is not within the act of the General Assembly.

It is objected, that the indictment should describe the game of Loto, in such manner, that the court can see, from the face of the indictment, if it is a game of chance. We cannot sustain this objection. The first count charges, that a gaming table, called Loto, was set up, and that a game of chance was played thereon. The allegation, that a game of chance was played thereon, is enough; and if, on the trial, it should appear, that it was not a game of chance, the defendant can call for instruction, and avail himself in that way. What a game of Loto is, appears by the bill of exceptions; and we have no hesitation in declaring, it is a game of chance. The first count charges it to be performed at a table, forbidden by the 87th section. This section forbids the setting up and the keeping of certain gambling tables, at which games of chance are to be played for money. This Loto is not one of the gambling tables enumerated, but it is contended by the prosecuting attorney, that it is embraced under the general word, or any other kind of gaming table or tables. It would be difficult to say, what shall be embraced within these general words, and what shall be excluded. “Gambling table” has no definite meaning; but we cannot imagine that this gambling device called Loto, is a gambling table of any kind; it appears by the bill of exceptions, to be a lottery, in its principles, and we think it badly described as a gambling...