State v. Brown

• Decision Date: 06 June 1925
• Docket Number: 25,258
• Citation: 118 Kan. 603,236 P. 663
• Parties: THE STATE OF KANSAS, Appellee, v. M. BROWN, Appellant
• Court: Kansas Supreme Court

236 P. 663

118 Kan. 603

THE STATE OF KANSAS, Appellee, v. M. BROWN, Appellant

No. 25,258

Supreme Court of Kansas

June 6, 1925

Decided January, 1925.

Appeal from Greenwood district court; GEORGE J. BENSON, judge.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GAMING--Setting up or Keeping Gaming Device or House--Construction Generally. That portion of R. S. 21-915 making it an offense to set up or keep certain named gambling devices, or any kind of gambling table or gambling device adapted, devised and designed for the purpose of gambling, or to induce any person to bet or play at or upon such gaming table or gambling device, or at any game played by means thereof, either on the side of or against the keeper, is directed primarily at the professional gambler and the tools and implements of his calling, or his use thereof.

2. SAME--Keeping Gambling Device--Essential Elements of Offense. It is an essential element of the offenses of setting up or keeping a gambling device, or of inducing persons to bet or play at a game thereon, that there be a keeper of such device, as that term is defined in R. S. 21-935.

3. SAME--Information--Requisites and Sufficiency. In a prosecution of one for permitting another to set up or use a gambling device on premises under his control, good pleading requires that the name of the person permitted to set up or use the prohibited device be set out in the information.

4. INDICTMENT AND INFORMATION--Separate Felonies in Same Count. Separate and distinct felonies, though of related character should not be charged in the same count in the information, and when so charged and timely objection is made by motion to quash, the motion should be sustained.

Robert H. Clogston, T. C. Forbes, both of Eureka, and F. S. Jackson, of Topeka, for the appellant.

Charles B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, and J. F. Darby, county attorney, for the appellee; Joseph A. Fuller, of Eureka, of counsel.

Harvey, J. Marshall, Hopkins, JJ., dissenting.

OPINION

HARVEY, J.:

This is an appeal from a verdict of guilty and judgment thereon in a prosecution under the gambling statute. The information, omitting caption and formal parts, is as follows:

"That on the 28th day of April, A. D. 1923, in said county of Greenwood and state of Kansas, one M. Brown did then and there unlawfully and feloniously and knowingly permit and allow to be set up and maintained gambling device and devices, composed of tables used for gaming and playing cards, the same being then and there adapted, devised and designed for the purpose of playing a game and games of chance, commonly known as 'poker' and other games of chance for money and other property, in the house and building known as the Brown or Clifton hotel, owned and occupied by the said M. Brown, the same being located on the north 40 feet of lots 1 and 12, block 2, and commencing at the northwest corner of lot 12, running east 314 feet, thence north 30 feet, thence west 314 feet, thence south 30 feet, to place of beginning, in the town of Virgil, Kansas, according to the original recorded plat of said town of Virgil; that the said defendant then and there being, did then and there permit and allow various persons to congregate in said house and building so owned and occupied by the said defendant, and then and there being, did then and there permit and allow various persons to engage in and play a game and games of chance, commonly known as 'poker' and other games of chance; that said games so permitted and allowed were played for lawful money of the United States of America and other property, and were played by means of the aforesaid gambling device and devices, which the said defendant so allowed and permitted to be set up and maintained in said house and building above described."

A motion to quash for the reason that the information did not state facts sufficient to constitute a public offense, and that it charged more than one offense in one count, was filed, considered and overruled. The jury returned a verdict finding "the defendant guilty of . . . permitting to be set up and used for gambling purposes certain gambling devices in the place and at the time and in the manner and form as charged in the information."

Appellant contends that the information was fatally defective and that the motion to quash should have been sustained. This requires an examination of our statute pertaining to gambling devices. The sections directly involved were originally enacted in 1855 (Laws 1855, ch. 53, §§ 15-26), and were taken bodily from the Missouri statute, where they were originally enacted in 1825, and, with some amendments, continue to be the law of that state. They were embodied in our General Statutes of 1868, in chapter 31, relating to crimes and punishments (§§ 239-250), with a few amendments, not here material. Together, the sections provided the legislative scheme for the classification and punishment of gambling with gambling devices. Section 239 was directed at the professional gambler who set up a gambling table or device and induced or permitted persons to play or gamble thereon, either on the side of or against the keeper or operator of such device. Section 240 was directed at the person who played or bet upon such device. Section 241 was directed at a person who would permit another to set up and use such a device on the premises owned by him or under his control. Section 242 was directed at a person who kept a common gaming house. Section 243 was directed at a person who should knowingly lease to another for the purpose of setting up or keeping such gaming devices. Section 244 defined who was a keeper of such gaming tables or devices. Section 245 declared leases to be void when the tenant was convicted of setting up and using gambling devices. Section 246 pertained to the testimony of persons concerning gambling devices. Sections 247 to 250 pertained to the powers and duties of the justice of the peace and other officials concerning gambling devices. It will be noted that these sections all relate in some way to the gambling devices prohibited by section 239.

Section 239 was amended in 1887 and again in 1895, and as so amended reads as follows:

"Every person who shall set up or keep any table or gambling device commonly called ABC, faro bank, EO, roulette, equality, keno, wheel of fortune, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, [and] or shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played at or by means of such table or gambling device, [or] either on the side of or against the keeper thereof, or shall keep a place or room to be used as a place for playing any game of cards for money or property, or keep a common gaming house, or keep a house, room or place to which persons are accustomed to resort for the purpose of gambling, shall on conviction be adjudged guilty of a [misdemeanor] felony, and punished by imprisonment [in a county jail not exceeding one year, and by fine not exceeding one thousand dollars] and hard labor for a term not less than one year nor more than five years." (R. S. 21-915.)

As above printed, the words in brackets were in the original section, but were taken out by the amendments, and the words in italics were not in the original section, but were added by the amendments. It will be noted that the principal changes wrought by the amendments are: (1) The names of two specific devices were added. (2) The setting up of the gambling device was made an offense, distinct from inducing, enticing or permitting a person to bet thereon. Previous to such amendment both elements entered into the offense. (3) There are added to the offense named in the original section the additional offenses (a) of keeping a place or room to be used as a place for playing any game of cards for money or property; (b) the keeping of a common gambling house (which was an offense under section 242); (c) keeping a house, room or place to which persons are accustomed to resort for the purpose of gambling; and (4) each of the offenses was made a felony instead of a misdemeanor.

Section 241 of the crimes act of 1868, as amended in 1895, is the same as section 17, chapter 53 of the Laws of 1855, except that the offense is made a felony instead of a misdemeanor, and reads as follows:

"Every person who shall permit any gambling table, bank or device prohibited by the first section of this act, to be set up or used for the purpose of gaming, in any house, building, shed, booth, shelter, lot, or other premises to him belonging, or by him occupied, or of which he has at the time possession or control, shall on conviction be adjudged guilty of a felony, and punished by imprisonment at hard labor for a term of not less than one year nor more than five years." (R. S. 21-916.)

The statute contemplates a keeper, and section 244, defining a keeper, has never been modified. It reads:

"Every person appearing or acting as master or mistress, or having the care, use or management for the time, of any prohibited gaming table, bank or device, shall be deemed the keeper thereof." (R. S. 21-935.)

The Missouri statute has been construed in the following cases Lowry v. The State, 1 Mo. 722; The State v. Purdom, 3 Mo. 114; State v. Ellis, 4 Mo. 474; Eubanks v. The State, 5 Mo. 450; The State v. Mitchell, 6 Mo. 147; State v. Bates, 10 Mo. 166; State v. Ames, 10 Mo. 743; State v. Fletcher, 18 Mo. 425; State v. Herryford, 19 Mo. 377; State v. Fulton, 19 Mo. 680; State v. Scaggs, 33 Mo. 92; The State v. Dyson, 39 Mo.App. 297; The State v. Mosby...