State v. Bruner

• Decision Date: 07 April 1885
• Citation: 17 Mo.App. 274
• Parties: STATE OF MISSOURI, Respondent, v. H. BRUNER, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 274

STATE OF MISSOURI, Respondent,

v.H. BRUNER, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 7, 1885.

APPEAL from the St. Louis Court of Criminal Correction, NOONAN, J.

Reversed and the defendant discharged.

ROWE & MORRIS, for the appellant.

J. R. CLAIBORNE, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The defendant was prosecuted upon an information for selling lottery tickets, in violation of Revised Statutes, section 1567. The testimony introduced to convict him was substantially as follows:

Charles Patterson, a witness, called on the defendant at 417 Walnut street, where was a bird store appearing to be kept by E. Kaub. There was a back room partitioned off from the front. “I went in there and went back to the little room and said, ‘I want to make a play.’ He handed me a piece of white envelope and I wrote three numbers on it, handed it in and he copied it on a little book and handed it back. Afterwards he said, ‘How do you want to play 2's and 3's? or how much?’ I don't remember the exact words. I says, ‘2's and 3's for a quarter,’ and handed him a silver dollar, and he gave me back seventy-five cents in change. Then I asked him, after I had made the play, was it the ‘East St. Louis drawing?’ and he said ‘No, the Kentucky drawing.”

The witness further said that he went back afterwards to get a drawing, but the numbers were not in the drawings. “Q. Then you lost? A. Yes, sir. Q. Did you see the numbers that drew? A. I saw the drawing.” In cross-examination, he explained, that what he meant by the “drawings” were some figures on a paper, and that the defendant did not tell him what they were. The remainder of the testimony was directed chiefly to an identification of the paper first mentioned, and of the figures written on it.”

This is substantially the same sort of testimony that was given for the state in State v. Russell (17 Mo.App. 16), and State v. Sellner (17 Mo.App. 39), decided by this court at the present term. We held in those cases that there was a total failure of proofs to sustain the several charges. The same result must follow here. The only additional items in the present testimony are those which relate to the “Kentucky drawing,” and to the use of the word “drawing” in another connection. But, how could the court or the jury know, without any evidence to that effect, that the Kentucky drawing, if such a thing existed, was a lottery, or anything like one? The words themselves could never, by their inherent force, import as much to any human being. Taking them with the aid of newspaper paragraphs and other hearsay indications, one might well believe himself to be sufficiently informed for conversational purposes, that there is a lottery...