State v. Brown

• Decision Date: 04 April 1912
• Citation: 145 S.W. 1180
• Parties: STATE v. BROWN et al.
• Court: Missouri Court of Appeals

145 S.W. 1180

STATE v. BROWN et al.

Springfield Court of Appeals. Missouri.

April 4, 1912.

1. INDICTMENT AND INFORMATION (§ 138)— MOTION TO QUASH—SUFFICIENCY.

Rev. St. 1909, § 5057, provides that an information shall be indorsed with the names of the witnesses for the prosecution in like manner and subject to the same restrictions as required in case of indictments. In a prosecution for gaming, there was a motion to quash the information on the ground "that said information * * * is not verified and indorsed as required by section 5057 of the Revised Statutes of Missouri of 1909." Held, that the motion was sufficiently specific to make available the objection that blank spaces on the printed form left for "witnesses for prosecution" were never filled in with the names of such witnesses.

2. INDICTMENT AND INFORMATION (§ 196)— WAIVER OF DEFECTS—INDORSEMENT OF WITNESSES.

Though, in a criminal prosecution, the information was insufficient for want of indorsement of the names of the witnesses for the state, the object of such indorsement is to enable the defendant to prepare his defenses, and, where no motion to quash on that ground was made until both sides had announced themselves ready for trial, the defendant must be deemed to have had his defenses prepared, and to have waived the objection.

3. GAMING (§ 63)— OFFENSES — STATUTORY PROVISIONS.

An information charged defendants with betting "a sum of money on a game of chance, commonly called `craps,' then and there played with dice and a blanket, devices for playing games of chance for money and property contrary to the form of the statute." Rev. St. 1909, § 4751, makes it an offense for any person to bet money or property on any gaming table, bank, or device prohibited by the preceding section, "or at or upon any other gambling device." Held, the doctrine of ejusdem generis was not applicable in construing section 4751, as the particular class of articles described is exhausted by the specific words used, and the rule that every clause of a statute should, if possible, have assigned to it a meaning, leaving no useless words, requires that the words "upon any other gambling device" shall prohibit the betting upon any gambling device, so that the information charges an offense within the statute.

4. CRIMINAL LAW (§ 742)—EVIDENCE—CREDIBILITY OF WITNESS—QUESTION FOR JURY.

Though, in a prosecution for gaming, there was only the testimony of one witness for the state, and that of three witnesses for the defense went to the bad reputation of the state's witness for truth and veracity, the question as to the weight and credibility of the testimony was for the jury.

5. GAMING (§ 101)—CRIMINAL PROSECUTION —EVIDENCE.

Evidence in a prosecution for gaming held sufficient to go to the jury as to the guilt of defendants.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Pete Brown and others were convicted of gaming, and appeal. Affirmed.

Shafer & Wetzel, of Greenfield, for appellants. Edwin Frieze, Pros. Atty., of Greenfield, and William B. Skinner, of Mt. Vernon, for the State.

NIXON, P. J.

Appellants were tried and convicted in the circuit court of Dade county, Mo., on an information charging that "defendants Pete Brown, Dick Wilkins, Wm. Perry, and Carl Stephenson, on the 14th day of August, 1911, at the said county of Dade, did then and there unlawfully bet a sum of money, to wit, twenty-five cents, at and upon a game of chance commonly called `craps' then and there played with dice and a blanket, devices for playing games of chance for money and property contrary to the form of the statute," etc. Upon trial defendants were found guilty, and a fine of $30 was assessed against each. The case is here on their appeal.

The bill of exceptions recites in the usual manner that the cause came on for trial before the judge and a jury, and that both sides announced ready for trial. Defendants then presented a motion to quash the information, alleging the following grounds: "That said information charges no offense against the laws of the state of Missouri, and is not verified and indorsed as required by section 5057 of the Revised Statutes of Missouri of 1909." The trial court, without objection from defendants, permitted the prosecuting attorney to verify the information, after which defendants' motion to quash was overruled. It appears that the blank space (on the printed form used) on the information left for "witnesses for the prosecution" was never filled in with the witnesses' names, and one of the grounds in the motion to quash the information was directed at this omission, as we have shown. The respondent in this court contends that the motion to quash did not specify this objection with that distinctness which the statute and the authorities require to make it available, citing section 5112, R. S. 1909, and the case of State v. Belew, 79 Mo. 585. We cannot agree with respondent in this contention. The motion alleged that the information "is not verified and indorsed as required by section 5057 of the Revised Statutes of Missouri of 1909." Looking to section 5057, we find that it makes only two requirements for an information, namely: (1) That all informations shall be signed by the prosecuting attorney, and be verified by his authority or by the authority of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; and (2) that the names of the witnesses for the prosecution must be indorsed on the information in like manner and subject to the same restrictions as required in case of indictments. We think the motion to quash was sufficiently specific.

However, before presenting the motion to quash the information, the defendants had announced ready for trial. Now the obvious purpose of the statutory requirement that the names of the witnesses for the prosecution be indorsed on the information is to enable the defendant to prepare his defense. By knowing the names of the witnesses by whom the state will attempt to sustain the charge, he can prepare for what he supposes they will testify. State v. Barrington, 198 Mo., loc. cit. 69, 95 S. W. 235. But defendants in this case evidently had their defense prepared, for they announced that they were ready for trial before they presented their motion to quash the information. In the case of State v. Martin, 230 Mo., loc. cit. 689, 132 S. W. 598, the motion to quash the information was filed, the court then permitted the state's attorney to supply the names of the witnesses on the information, and then overruled the motion. Under the authorities, the defendant could then have had further time in which to prepare for trial (State v. Barrington, 198 Mo., loc. cit. 69, 70, 95 S. W. 235), but did not request that he be given further time. The court said: "On the contrary, it does show that he announced ready for trial, and, having so announced, he cannot now be heard to complain that he was denied reasonable time to prepare for his defense after the names of the witnesses against him were disclosed by the prosecuting attorney." Of course, that case is not exactly parallel to this because in that case the names of the witnesses were supplied and the trial was proceeded with, while in this case the...