State v. Castino
| Decision Date | 08 February 1954 |
| Docket Number | No. 1,No. 43799,43799,1 |
| Citation | 264 S.W.2d 372 |
| Parties | STATE v. CASTINO |
| Court | Missouri Supreme Court |
Charles M. Shaw and Wayne C. Smith, Jr., Clayton, for appellant.
John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant and two others were jointly charged with the crime of keeping gaming devices (Sec. 563.370 RSMo 1949, repealed and re-enacted, Laws of Missouri 1951, pp. 454-455, A.L.1951, V.A.M.S.). Defendant requested and was granted a severance. Upon separate trial he was convicted and his punishment assessed by the jury at two years imprisonment in the State Penitentiary. He has appealed from the ensuing judgment.
Defendant-appellant contends the trial court erred (1) in overruling defendant's motion for a directed verdict; (2) in giving the State's Instructions 1 and 2; (3) in refusing to declare a mistrial because of the trial judge's remarks to the panel of veniremen on voir dire; and (4) in permitting counsel for the State to cross-examine and impeach a State's witness.
Attending defendant-appellant's contention of error (1) in refusing his motion for a directed verdict--we shall state the evidence tending to show defendant's guilt of the crime as charged.
At about 1 o'clock in the morning of December 31, 1952, the sheriff of Jefferson County and three of his deputies, the prosecuting attorney of the County and his assistant, and two state highway patrolmen 'raided' Spring Dale Tavern located on State Highway No. 141 in Jefferson County. In approaching the Tavern the raiding party divided and, while some of the party guarded the rear door, others entered the front door of the Tavern. The officers observed gaming tables and other gaming equipment in the main (front) room of the building. The tables and equipment consisted of two 'regulation' dice or crap tables, one 'regulation' blackjack table, cards, dice, and one roulette table with wheel and croupier's stick. 'Around twenty persons (including defendant) were present.' There were dice on the crap tables, and cards on the blackjack table. A witness testified that when the officers entered there were several people gathered around one of the large tables. One Dikos was on a 'high seat' above the table with a stick in his hand, and a stack of chips was on the end of the table. When the officers were 'taking down' the various tables, defendant Defendant cautioned that the roulette wheel alone 'would cost at least $1000.'
A witness, Craig, who had been jointly charged with defendant and who had entered a plea of guilty but whose punishment had not been assessed, testified for the State in describing the manner of using the described devices and equipment in gambling. They had been 'used some' within two weeks before December 31st, the day of the raid as stated. The witness 'financed' the games. 'Customers' came to the place and played at the devices. Defendant was frequently in and out of the place. Defendant 'stood around and talked to people.' The witness further said defendant 'was supposed to scout some business for me, working for me * * * supposed to get a per cent out of it provided we made anything.'
In our opinion the foregoing constitutes substantial evidence tending to show that defendant (with others) was keeping gaming devices in the sense as proscribed by Section 563.370, supra. We have noted the testimony of defendant's anxiety in the protection of the gaming tables as they were being taken down by the officers. The testimony of the witness Craig that defendant was supposed to 'scout' business could be reasonably interpreted as meaning there was an actual arrangement that defendant was to solicit or induce persons to play at the devices, which fact, with the fact of defendant's presence 'standing around and talking to people' and the fact that defendant was frequently in and out of the place, constituted substantial evidence, we think, tending to prove defendant and Dikos and Craig were acting with the common intent to 'set up and keep' the described gaming equipment, and to induce, entice or permit gambling therewith and thereon as more particularly averred in the information. We believe the trial court did not err in refusing to sustain defendant's motion for a directed verdict of acquittal. State v. Frisby, Mo.Sup., 214 S.W.2d 552; State v. Rizor, 351 Mo. 137, 171 S.W.2d 710; State v. Souva, 234 Mo. 566, 137 S.W. 873; State v. Chauvin, 231 Mo. 31, 132 S.W. 243; State v. Mathis, 206 Mo. 604, 105 S.W. 604. And, since defendant-appellant contends (2) the State's given Instruction No. 1 was erroneous for the reason that no competent evidence sustained the submission that defendant acted jointly with another or others in setting up, maintaining and operating the gaming devices, we rule that such contention is also without merit.
With regard to the State's Instruction No. 2, no assignment of error of the trial court in giving the instruction was made in defendant's motion for a new trial. The trial court was not called upon to consider the contention or assignment of error in the giving of the instruction, which contention is now made for the first time in defendant's brief upon this appeal. The contention may not now be considered here. State v. Boyd, Mo.Sup., 256 S.W.2d 765; Sec. 547.030 RSMo 1949, V.A.M.S.
(3) After the veniremen were sworn for interrogation on voir dire, the trial judge addressed the panel as follows,
'This is a proceeding commenced by information filed against three defendants for setting up and maintaining a gambling device at a place known as Springdale located on highway 141 and that one of these defendants has already pleaded guilty but has not as yet been sentenced by the Court.'
Defendant's counsel moved for a discharge of the jury on the ground The motion was overruled.
Defendant, having been...
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State v. Dodson, 37584
...may be removed where the court promptly cures the prejudice by instruction, admonition, or further explanation to the jury. State v. Castino, 264 S.W.2d 372 (Mo.1954); State v. Hudson, supra. The trial court here thoroughly emphasized, after its initial remarks were interrupted by counsel's......
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...by the judge. A judge must not say anything that can be construed by the jury to the prejudice of the defendant. State v. Castino, 264 S.W.2d 372, 375 (Mo.1954). "Even if counsel or others should be guilty of misconduct the judicial calmness and the dignity and the self-restraint and obviou......
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State v. Boyd, WD
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