State v. Clein
| Decision Date | 03 April 1911 |
| Citation | 136 S.W. 14,154 Mo.App. 686 |
| Parties | STATE OF MISSOURI, Respondent, v. WALTER CLEIN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. John T. Moore, Special Judge.
Judgment reversed.
Patterson & Patterson for appellants.
(1) The court erred in admitting testimony to the effect that the place where defendants were arrested was commonly called a gambling house. It is not admissible to prove the character of a house by general reputation, or common rumor. Kelley's Criminal Law (2 Ed.), 956; 6 Ency. of Evidence 199; Wharton on Criminal Evidence, (9 Ed.), secs. 260 and 261; Loehner v. Ins. Co., 17 Mo. 258; In re Imboden, 128 Mo.App. 573. (2) It was highly improper and prejudicial to the rights of defendants for the court to permit the state to prove by the witness Walsh that checks such as were found in the place where defendants were arrested usually represented money. It was not a question of what the checks usually represented, but what they represented, if anything, at the particular time the defendants were charged with having played poker for money. State v. Brooks, 94 Mo.App. 57. (3) In a prosecution for gambling the state must show that defendants bet money or some other thing of value. And this must be proved beyond a reasonable doubt. 6 Ency. of Evidence, 190.
J. C West, Prosecuting Attorney, for respondent.
Appellants were tried and convicted upon an information charging them with having played a game of poker for money and property and have appealed. The evidence consists of the testimony of the four officers who made the arrests and tended to show that on the afternoon of August 15, 1910, the officers went to a room over the Frisco Barber Shop on Commercial street in the city of Springfield; that two of the officers went up the front stairway and two went up the back stairway; that officer Walsh pressed an electric button at the front door and was asked by a man inside, "Who is there?" Walsh answered, "A friend." The question was repeated, and the same reply made, whereupon the door was opened slightly and Walsh placed his club in the opening so the door could not be closed and the two officers pushed on the door and gained about six inches and finally threatened to shoot if the door was not opened. That as soon as the door was first opened, the man who opened it said, "Hey!" in a very low tone and when he let the door be opened said, "Run boys, run!" and the five men inside ran toward the back door which they unlocked and opened and were confronted by the two officers waiting there. Clein was found hiding behind something and Rush was in bed--with all his clothes on.
Officer Walsh testified that in the front room from which the defendants fled was found a large round table covered with gray cloth something like a blanket; that five hands of cards were dealt around the table and that "he would take it to be a poker game"; that by each hand was a stack of poker chips or checks, except one hand which was pushed to the center of the table and the chips with it. None of the witnesses saw the defendants actually engaged in the game. When the officers entered the room the defendants were rapidly moving out. No one saw any of the defendants buy any chips or cash any chips. No money was found in the room though a thorough search was made. Whether defendants had any money in their clothes does not appear. A box was found in the room near the table, containing chips of different colors, but no money or other thing of value. The evidence tended to show that someone ran down the front stairs just as the officers entered the room. Upon this testimony the defendants were...
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