State v. Blanchard

• Citation: 33 S.W.2d 937,326 Mo. 965
• Parties: The State v. Jess Blanchard, Robert Gooding, A. J. Crabtree and Floyd Brown, Appellants
• Decision Date: 20 December 1930
• Court: Missouri Supreme Court

33 S.W.2d 937

326 Mo. 965

The State v. Jess Blanchard, Robert Gooding, A. J. Crabtree and Floyd Brown, Appellants

Supreme Court of Missouri

December 20, 1930

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Affirmed.

Fred W. Coon, Harold E. Marshall and Walter A Raymond for appellants.

(1) The indictment is insufficient to charge defendants with the commission of a crime. (a) The indictment is invalid for the reason that it does not aver that defendants set up furnished and kept the dice, or cards, money and chips without which the gambling device was incomplete. State v. Wade, 267 Mo. 249, 183 S.W. 598; State v. West, 11 S.W.2d 1032; State v. Morris, 272 Mo. 522, 199 S.W. 144. (b) The indictment is fatally defective in that it fails to sufficiently describe the crap table and black-jack table. State v. Harper, 190 S.W. 272; State v. Shepherd, 192 S.W. 427. (2) The evidence is wholly insufficient to support a conviction of any of the defendants. State v. Solon, 247 Mo. 782; State v. Clein, 154 Mo.App. 686; State v. Patton, 255 Mo. 245; State v. Miller, 234 Mo. 588.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General for respondent.

(1) The indictment is sufficient to charge an offense under Sec. 3537, R. S. 1919. State v. Rosenblatt, 185 Mo. 114; State v. Fulton, 19 Mo. 680; State v. Baughman, 184 Mo. 192; State v. Sidenbender, 185 Mo. 124; State v. Locket, 188 Mo. 415; State v. Hall, 228 Mo. 456; State v. Chauvin, 231 Mo. 31; State v. Cannon, 232 Mo. 205; State v. Wolf, 230 Mo. 676; State v. Lee, 228 Mo. 480; State v. Holden, 203 Mo. 581; State v. McKee, 212 Mo. 138; State v. Johns, 259 Mo. 361; State v. Lawson, 239 Mo. 591; State v. Mathis, 206 Mo. 604; State v. Williams, 273 S.W. 1069; State v. Greer, 6 S.W.2d 842. (2) The motion for new trial being untimely, only the record proper is before this court for review. Sec. 4079, Laws 1925, p. 198; State v. Taylor, 301 Mo. 438; State v. Emry, 18 S.W.2d 10; State v. Harrison, 29 S.W.2d 63.

OPINION

White, J.

An indictment was returned by the grand jury in the Circuit Court of Jackson County charging the defendants with setting up and keeping gambling devices, in violation of Section 3537, Revised Statutes 1919. On the trial, April 11, 1929, the defendants were found guilty, each by a separate verdict, and punishment assessed against each at six months' imprisonment in the county jail. All the defendants appealed.

I. The verdicts were returned April 11, 1929, and the record shows defendants filed their motion for new trial April 17, 1929. April 11th was Thursday, and April 17th was the Wednesday following. Thus the motion was filed out of time. The record must show affirmatively that the motion for new trial was filed in time. [St. Louis v. Boyce, 130 Mo. 572; City of St. Louis v. Glennon, 229 S.W. 205; Bollinger v. Carrier, 79 Mo. 318; State ex rel. v. Sanford, 181 Mo. 134, l. c. 136; State v. Brown, 206 Mo. l. c. 506.]

The rule governing the time of filing such motion is the same in criminal cases as it is in civil cases. [State v. Fawcett, 212 Mo. l. c. 737.] Section 4079 as amended by the Act of 1925 (Laws 1925, p. 198), provides that for good cause shown the court may extend the time for filing a motion for new trial.

Both the record proper and the bill of exceptions affirmatively show the motion was filed out of time. There would have to be a record of equal verity showing such extension, which could not be presumed from the fact that the court considered and overruled the motion. It was said in the Brown case, supra, l. c. 507:

"It is true that the trial judge heard and considered the motion for new trial just as if it had been duly filed, and then overruled it, which he had no power to do, the motion not having been filed in term time."

We are unable to consider the bill of exceptions. Although it appears from the briefs that the only point relied upon is the failure of the State to make out a case, and it seems from the argument the evidence supports the allegations of the indictment.

II. It is claimed further, and argued at length, that the indictment is insufficient. It is as follows, omitting caption and signatures:

"The Grand Jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn and charged to inquire within and for said county, upon their oaths present and charge that Jess Blanchard, Robert Gooding, A. J. Crabtree and Floyd B. Brown whose christian names in full are to the said Grand Jury unknown, on the 12th day of October, 1928, at the County of Jackson and State of Missouri, did then and there unlawfully and feloniously set up and keep certain gambling tables and gambling devices, to-wit: one crap table commonly so-called, upon which dice were thrown and used, and one Black-jack table, upon which cards, money and chips were used, which said gambling devices were adapted, devised and designed for the purpose of playing games of chance for money and property, did then and there unlawfully and feloniously entice and permit divers persons, whose names are to the said Grand Jurors unknown, to bet and play at and upon and by means of the said gambling tables and gambling devices, against the peace and dignity of the State."

It is claimed that the indictment does not aver that the defendants set up the dice, cards and chips which constituted the gambling devices mentioned in the indictment.

The allegation is that the defendants did "feloniously set up and keep certain gambling tables and gambling devices, to-wit:

"One crap table, commonly so called, upon which dice were thrown and used, and one Black-jack table, upon which cards, money and chips were used, which said gambling devices were adopted, devised and designed for the purpose of playing games of chance, etc."

The only defect claimed in these averments was that the defendant only set up and kept the crap table and the black-jack table which were not necessarily gambling devices. The tables were only part of the devices mentioned. The defendants set up and kept the gambling devices (plural), one crap table upon which were used other devices mentioned. Then follows "which said gambling devices" (plural), "were adapted, devised and designed," etc. That means the gambling devices which the defendants were alleged to have set up. It is a strained construction to say that the defendants would not understand that they were charged with setting up and keeping all the gambling devices mentioned, dice, cards, and chips, as well as the tables. No juror could understand that the defendants only set up the tables. The device consisted of the table and the dice used upon it, and the black-jack table and the cards, chips and money used upon it. If the averments lacked the certainty and precision of form which would satisfy the defendants their remedy was to attack it before the trial by motion or otherwise. There was no objection to it. They went to trial upon it as it read as if fully...