State v. Burke

• Decision Date: 26 June 1899
• Citation: 52 S.W. 226,151 Mo. 136
• Parties: STATE v. BURKE et al.
• Court: Missouri Supreme Court

52 S.W. 226

151 Mo. 136

STATE v. BURKE et al.

Supreme Court of Missouri, Division No. 2.

June 26, 1899.

GAMBLING — PARTICULARITY OF ALLEGATIONS — POOL SELLING AND BOOK MAKING — VERDICT.

1. An indictment which charged that defendants "did wager on the results of contests which were to take place within and beyond the limits of this state" does not charge an offense under a statute which prohibits any persons making a wager on the result of a contest to take place within or beyond the limits of the state.

2. An indictment which charged that defendant "did unlawfully record and register, by mechanical and other means, divers and sundry bets and wagers with persons to the grand jury unknown," is insufficient for want of particularity, as it does not allege that the mechanical and other means were unknown, and hence should have alleged them with particularity.

3. An indictment which charges defendant with engaging in selling auction pools and bookmaking is insufficient under a statute which prohibits "pool selling and bookmaking" as failing to allege the acts constituting bookmaking and pool selling.

4. Where the indictment charges more than one offense, a verdict finding defendant guilty, without specifying of which offense, is insufficient to support a judgment of conviction.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Richard Burke and others were convicted of gambling, and appealed. Reversed.

Morton Jourdan, for appellants. The Attorney General and Sam B. Jeffries, for the State.

SHERWOOD, J.

The defendants, nine in number, were all found guilty "as charged in the indictment herein," and fined each in the sum of $1,000. This punishment was assessed after a trial by the court alone on the following indictment: "State of Missouri, County of St. Louis — ss.: In the Circuit Court of St. Louis County. January Term, 1899. The grand jurors for the state of Missouri, now here in court, duly impaneled, sworn, and charged to inquire within and for the body of the county of St. Louis, and State of Missouri, upon their oath present and charge that Richard R. Burke, Edward Fitzgerald, William Dunn, Charles Mason, Isaac Cohen, Michael Healey, William Mathews, John Cohick, Joseph Donegan, Joseph Daily, Curley Britt, David Sabine, Burt Kreler, and Howard Ellis, on the 4th day of February, 1899, at said county of St. Louis, in said state of Missouri, then and there did unlawfully, willfully, injuriously, wickedly, and knowingly record and register, by mechanical and other means, divers and sundry bets and wagers, and sell auction pools, and engage in bookmaking with divers and sundry persons to said grand jury unknown, by and through certain devices, books, instruments, and contrivances to the said grand jurors unknown, upon the result of certain trials and contests of skill, speed, and power of endurance of man and beast which was to take place within and beyond the limits of this state, to wit, at the city of New Orleans, in the state of Louisiana, without then and there first having obtained a license from the state auditor so to do [such licenses stating that the contests upon which said pools, books, and wagers made were actually to take place upon the race courses and fair grounds, where they, the said Richard R. Burke, Edward Fitzgerald, William Dunn, Charles Mason, Isaac Cohen, Michael Healey, William Mathews, John Cohick, Joseph Donegan, Joseph Daily, Curley Britt, David Sabine, Burt Kreler, and Howard Ellis, desired to carry on their business; the character of the business they, the said Richard R. Burke, Edward Fitzgerald, William Dunn, Charles Mason, Isaac Cohen, Michael Healey, William Mathews, John Cohick, Joseph Daily, Curley Britt, David Sabine, Burt Kreler, and Howard Ellis, then and there desired to conduct; the length of time during which they desired to carry on their business, or any other legal authority so to do]. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. F. A. Heidorn, Prosecuting Attorney, St. Louis County, Mo." That portion of the indictment within brackets will not be considered in the remarks which we shall make touching the sufficiency of that instrument, inasmuch as that bracketed portion has no proper place nor function to perform in the indictment. "An act to punish bookmaking and pool-selling by unlicensed persons, to provide for the issuance of such a license and to dispose of the funds arising from such license" (Laws 1897, p. 100), is the statute upon which the indictment in question is drawn. Section 1 of that statute, so far as necessary to quote it, is the following: "Section 1. No person or persons shall record or register, by mechanical or other means, bets or wagers, or sell auction pools, or engage in bookmaking by or through any device, book, instrument or contrivance whatever, upon the result of any trial or contest of skill, speed or power of endurance of man or beast which is to take place within or beyond the limits of this state without first having obtained a license so to do as herein provided. * * * Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment in the county jail for a period of one year, or a fine of one thousand dollars, or by both such fine and imprisonment." The motion in arrest challenges the sufficiency of this indictment. But, under our former rulings, advantage can be taken of serious and substantial defects in an indictment in this court for the first time, or by this court of its own motion. State v. Meyers, 99 Mo. 107, 12 S. W. 516, and cases cited, and subsequent cases. This indictment is bad in many respects, of which a few will now be noted. The statute speaks of "bets or wagers * * * whatever, upon the result of any trial or contest of skill, speed or power of endurance of man or beast which is to take place within or beyond the limits of this state." Such bets or wagers, etc., are prohibited upon the result, etc., "within or beyond the limits of this state." If within the limits of this state, it is an offense; and it is equally an offense if "beyond the limits of this state." But the draftsman of the indictment, not content to follow the statute, charges an offense upon a result "which was to take place both within and beyond the limits of this state." Such an offense is unknown to the statute, and therefore no offense, and nonpunishable. Touching this subject, an eminent author says: "Meaning of Strict Interpretation. Such statutes are to reach no further in meaning than their words. No person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter." Bish. St. Crimes, § 194. Now, looking again at the statute, we find that the acts mentioned in the section heretofore quoted are made to turn, and their criminality to depend, "upon the result of any trial," etc., "which is to take place within or beyond the limits of this state." Under the express terms of the statute, therefore, unless the bets or wagers or the selling of the auction pools or the bookmaking, etc., are based upon the result, etc., to take place either within or else beyond the limits of this state, there is no offense committed. Inasmuch as the indictment does not charge that the result, etc., was to take place in any one of the two localities specified in the statute, it necessarily follows that the indictment charges no offense, and is bad throughout. As Lord Mansfield observed in Browning v. Morris, Cowp. 790, "The statute itself * * * has marked the criminal." The persons on whom the penalties are to fall, and in what circumstances, are thus designated by the statute. Howell v. Stewart, 54 Mo. 400. In continuation of the subject of the strict interpretation given to criminal statutes, and citing cases illustrating such strictness, the author already quoted observes: "* * * In slightly different language, though a case of this sort is fully within the mischief to be remedied, and is even of the same class, and within the same reason, as other cases enumerated in the statute, construction will not be permitted to bring it within the statute unless it is also within the statutory words. Thus, under words making punishable those who, with intent to commit any felony, `shall in the nighttime enter without breaking, or in the daytime break and enter, any warehouse,' an entry in the night by breaking was held not to be included. It being forbidden to set up a faro table `in any dwelling house, or place occupied by any tavern keeper, retailer of wine, spirituous liquors, beer, or cider,' one in a locality not in terms mentioned — as, for instance, in...