State v. Chauvin

• Decision Date: 29 November 1910
• Parties: STATE v. CHAUVIN.
• Court: Missouri Supreme Court

132 S.W. 243

231 Mo. 31

STATE v. CHAUVIN.

Supreme Court of Missouri. Division No. 2.

November 29, 1910.

1. CRIMINAL LAW (§ 1172)—HARMLESS ERROR —ERRONEOUS INSTRUCTIONS.

The error in an instruction, placing on the state the burden of proving more than the law requires to justify a conviction, is in favor of accused, and he cannot complain thereof.

2. GAMING (§ 79)—CRIMINAL OFFENSE—PARTIES LIABLE.

One in charge and control of a gambling device owned by a club which received the profits from games played thereon, and who acted as an employé for the club in setting up and keeping the device and inducing persons to play thereon, maintained a gambling device in violation of Rev. St. 1909, § 4750, punishing the keeping of gaming devices and inducing persons to play on the same, though he had no pecuniary interest in it, and though the games were played as much for amusement as for the chance of winning.

3. CRIMINAL LAW (§ 58)—PARTIES TO OFFENSE —AGENCY.

The criminal law does not recognize the doctrine of agency as a defense to a criminal charge, but it deals with the person committing the overt act.

4. GAMING (§ 79)—CRIMINAL OFFENSE—STATUTES.

Rev. St. 1909, § 4750, prohibiting the maintenance of gambling devices and inducing persons to play thereon is leveled against persons setting up or keeping any kind of a gambling device, and the statute does not exempt from its provisions those who commit the prohibited act without having a pecuniary interest in the game, nor does it make any difference where the gambling device may be set or kept, whether in a building used for the purposes of a social organization, or in the privacy of the home of accused, and one maintaining any kind of a gambling device and inducing and enticing or permitting others to bet or play at or on the same, violates the statute.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Sylvester Chauvin was convicted of gambling, and he appeals. Affirmed.

C. Orrick Bishop, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

KENNISH, J.

On March 29, 1909, the grand jury for the city of St. Louis returned an indictment charging defendant with having feloniously set up and kept a gambling device, to wit, a poker table. After being arraigned and entering a plea of not guilty, the defendant was put upon his trial, which resulted in his conviction, and the assessment of punishment at six months imprisonment in the city jail. Unavailing motions for new trial and in arrest were thereupon filed, after which judgment was pronounced in accordance with the verdict, and an appeal was duly taken.

On the part of the state the testimony tended to prove that the Modern Horseshoe Club had headquarters in a three-story building located at No. 2309 Chestnut street, in the city of St. Louis. In different rooms of this building various persons assembled and played poker for money. The games were played on tables which were kept for that purpose, and, instead of using money in the games, each person desiring to play purchased chips from the person in charge of the place, paying him money therefor. After the game was ended the chips were returned to the person from whom purchased, and the amount represented by them was paid by the "keeper" to the person by whom they were presented. While the game was in progress and on each occasion when the players held certain cards, the person in charge of the house, referred to as the "keeper," would take from the players his "rake off," which consisted of two chips representing five cents. Regardless of the result of the game, this "rake off" was exacted by the "keeper"; it represented his charge for the use of the table and as the keeper of the game. From December, 1908, until February, 1909, the appellant was in personal charge of the tables used as above mentioned, and acted in the capacity of "keeper," selling and redeeming the chips, arranging for the games, taking the "rake off," and playing at the game himself whenever it was necessary to have a sufficient number of players for a game. The game of poker was fully explained by an expert witness, and it was shown to be a game of chance played upon a table with cards, but we do not deem it necessary to set out in detail the evidence upon that branch of the case. Appellant offered no evidence in his own behalf, but at the close of the evidence for the state asked an instruction in the nature of a demurrer to the evidence and directing a verdict of acquittal.

1. It is conceded in appellant's brief that under the recent decisions of this court the indictment in this case is sufficient, and we are therefore relieved from a review of the action of the trial court in overruling the motion to quash and the motion in arrest of judgment.

2. Appellant complains that the court erred in giving of its own motion the following instructions:

"The court instructs the jury that before you can convict the defendant in this case of the charge mentioned in the indictment, you must not only find that the defendant set up or kept the table mentioned in the evidence, and that the same was a gambling device, but that he induced, enticed or permitted other persons to play upon it whilst he was himself in charge of setting up or keeping said table; and unless you find that the defendant set up...