State v. Cannon
| Decision Date | 07 February 1911 |
| Citation | 134 S.W. 513,232 Mo. 205 |
| Parties | THE STATE v. CHARLES CANNON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Henry L. Bright, Judge.
Affirmed.
Clay & Davis for appellant.
(1) Defendant was not rearraigned after the withdrawal of his plea of not guilty. (2) There is no evidence to support the verdict, and the peremptory instruction, requested by defendant and refused by the court, should have been given. The poker table in question in this case is not a gambling device within the meaning of Sec. 4750, R. S. 1909. State v. Etchman, 184 Mo. 193; State v. Mathis, 206 Mo. 604; State v. Hall, 228 Mo. 456. A crap table such as the evidence in this case shows the table at issue under the second count of the information to be, is a "bank" table. So, also was the crap table in the case of State v. Holden, 203 Mo. 581, a "bank" table.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) The information is valid and sufficiently charges the offense in the language of the statute and is good. R. S. 1909, sec 4750. The prohibition of the statute includes the setting up and keeping of any kind of gambling device adapted, designed and devised for the purpose of playing any game of chance for money or property. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; Kelly's Crim. Law sec. 950; State v. Locket, 188 Mo. 418; State v. Hall, 228 Mo. 456. (2) The two offenses alleged in both counts of the information were based upon Sec. 4750, R. S. 1909, and the court did not err in overruling appellant's motion to quash. State v. Carragin, 210 Mo. 363. (3) The demurrer was properly overruled as the information was well enough. See authorities under 1. (4) The instructions are full and complete and no complaint can be successfully alleged against them. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610. (5) The jury settled the conflict in the evidence, and this court will not interfere on that score. State v. Matthews, 202 Mo. 148; State v. Tetrick, 199 Mo. 100; State v. Williams, 186 Mo. 128. There was an abundance of evidence to take the case to the jury.
At the February term, 1910, of the circuit court of Jasper county, the prosecuting attorney filed an information jointly charging the appellant, Charles Cannon, F. W. Potts and L. W. Smith, under section 4750, Revised Statutes 1909, with the offense of having set up and kept divers gaming tables and gambling devices. The information charged the offense in the language of the statute and in two counts, the only difference in the counts being that the gaming table described in the first is a poker table with the paraphernalia incident to the playing of that game, while the second describes a crap table and the dice used in the playing of the crap game.
The record shows the filing of certain dilatory motions by the defendants, but as these motions and the rulings of the court thereon are not preserved in the bill of exceptions, they are not open to review on this appeal and need not be further noticed.
The defendants waived formal arraignment and entered a plea of not guilty. Before announcing himself ready for trial the defendant Charles Cannon moved the court for a separate trial and a severance was granted. Thereupon the defendant, Charles Cannon, demurred to the information on the ground that it did not state facts sufficient to constitute an offense under the laws of this State. The demurrer was overruled and the defendant was put upon his trial, which resulted in a verdict of guilty under the first count of the information, his punishment being assessed at a term of two years in the penitentiary, and an acquittal on the second count. After the proper motions were filed and overruled, judgment was pronounced, and the defendant appealed to this court.
The evidence for the State tended to prove these facts:
The Southern Club Saloon building is located on the corner of Church and Allen streets in Webb City, this State. It is a double, two-story structure, and at the time of the alleged offense one room on the ground floor was occupied as a dramshop, known as the Southern Club Saloon, and the other room on the ground floor was used as a pool hall.
The large room in which the defendant was charged with keeping gaming tables was upstairs over the pool hall and could be reached by two inside stairways, one leading up from the rear of the saloon and another from the front; also by a third stairway from the outside. This room over the pool hall, on the night of the 11th of December, 1909, and for some weeks before, was fitted up with poker and crap tables and had been used as a common gambling room. On the last mentioned date, while gambling on both the poker and crap tables was going on, officers raided the place, found a large number of men therein, made several arrests, and seized the tables, gambling devices and paraphernalia used in carrying on the games. These tables and devices were produced in the court room at the trial, were referred to and identified by the witnesses, and were introduced in evidence. They were tables adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and were so used on the night of the 11th of December, 1909, and for several weeks prior to that date.
The defendant and his codefendant, Potts, were generally at this gambling room, and there was evidence that each had supplied money to continue the games at times when more money was needed for that purpose. Once or twice Potts had furnished the necessary money to the defendant when the latter was acting as dealer at the crap table. A. O. Walker, a dealer at one of the tables when the raid was made, testified that he was employed and paid for his services at said gambling room by the defendant; that he had seen the defendant run the said poker table, sometimes playing and taking charge of the game, looking after the rake-off which went to the house, and that the defendant had furnished him with the sum of forty-two dollars and fifty cents that night to use in the game at the crap table.
The defendant testified in his own behalf and denied that he had employed Walker as a dealer at the gambling room, or that he had furnished Walker any money to be used in the games, and further denied that he had any interest in the gambling rooms located over the Club Saloon or adjacent to it.
The defendant moved the court to require the State to elect upon which count of the information it would ask a conviction, both at the close of the evidence for the State and at the close of all the evidence. The defendant also moved the court to require the State to elect upon which of the several charges contained in each count of the information it would proceed to trial.
The court overruled the motions to elect, submitted the case to the jury upon instructions authorizing a verdict of guilty upon one or both counts of the information, or an acquittal upon one or both counts, accordingly as they should find and believe from the evidence. The jury returned a verdict of guilty under the first count and of acquittal upon the second count, as before stated.
I. The information and each count thereof properly charges the offense in the language of the statute, is in form as approved by this court, and the court did not err in overruling the demurrer. [State v. Chauvin, 231 Mo. 31, 132 S.W. 243; State v. Rosenblatt, 185 Mo. 114, 83 S.W. 975; State v. Mathis, 206 Mo. 604, 105 S.W. 604; State v. Lee, 228 Mo. 480, 128 S.W. 987.]
II. It is assigned as error that the defendant was not rearraigned after the withdrawal of his plea of not guilty.
The record shows that the defendant waived formal arraignment and entered a plea of not guilty, and it does not show that this plea was withdrawn. The filing of the demurrer thereafter did not have the legal effect of withdrawing the plea of not guilty, and after a ruling thereon a new arraignment was not necessary. [State v. Gieseke, 209 Mo. 331, 108 S.W. 525.]
III. Complaint is made that the court erred in overruling defendant's motion to require the State to elect upon which of the several charges contained in each count of the information it would proceed to trial.
Each count charged the setting up and keeping of one gaming table only, and the averment that the defendant enticed and permitted divers persons to bet and play thereon did not make the count double, and the motion to elect was properly overruled.
IV. At the close of the evidence for the State and again at the close of all the evidence, the defendant moved the court to require the State to elect upon which count it would ask a conviction, and defendant's instruction numbered 4, which the court refused, declared the law to be that the jury could not convict upon both counts of the information, although they should believe from the evidence that the defendant set up and kept both tables as charged in the two counts of the information. It is contended by appellant that the court erred in not requiring the prosecuting attorney to elect, and in refusing said instruction numbered 4.
The defendant's instruction numbered 4, in so far as it declared the law that the defendant could not be convicted upon both counts, was a correct statement of the law applicable to the facts in evidence, and the court should have required the prosecuting attorney to elect upon...
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