State v. Cronin

• Citation: 189 Mo. 663,88 S.W. 604
• Parties: STATE v. CRONIN.
• Decision Date: 20 June 1905
• Court: United States State Supreme Court of Missouri

88 S.W. 604

189 Mo. 663

STATE v. CRONIN.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. LOTTERIES—"POLICY"—INDICTMENT.

In a prosecution for violating Rev. St. 1899, § 2219, prohibiting any person from establishing a "policy" as a business or avocation, an indictment charging that defendant unlawfully and feloniously made and established a policy as a business and avocation was not objectionable for failure to define in what manner a "policy" was made or established, or what was meant by a "policy."

2. SAME—EVIDENCE.

In a prosecution for aiding and assisting in establishing a "policy" in violation of Rev. St. 1899, § 2219, evidence held sufficient to sustain a conviction.

3. SAME—INSTRUCTIONS.

Where, in a prosecution for aiding and assisting in establishing a "policy," an instruction pointed out the facts constituting the felony, it was not objectionable for failure to require that the acts must have been "feloniously" committed.

4. SAME—VERDICT—JUDGMENT.

Where, in a prosecution for aiding and assisting in establishing a policy as a business and avocation, the jury rendered a special verdict finding defendant guilty of aiding and assisting in establishing a policy, and the judgment followed the verdict, both were fatally defective for failure to find that defendant aided or assisted in establishing a policy as a "business or avocation."

5. SAME—MOTION IN ARREST.

Where a verdict finding defendant guilty of aiding and assisting in establishing a policy was fatally defective for failure to find that he established such policy "as a business or avocation," defendant was entitled to urge such objection on appeal, though not raised by motion in arrest of judgment.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Frank Cronin was convicted of aiding and assisting in establishing a policy, and he appeals. Reversed.

Morton Jourdan, for appellant. Herbert S. Hadley, Atty. Gen., and N. T. Gentry, for respondent.

GANTT, J.

At the February term, 1903, the grand jury of the city of St. Louis preferred indictment against the defendant, the second count of which is in the following words: "And the grand jurors aforesaid, upon their oath aforesaid, do further present and say that Frank Cronin and Louis Miller, late of the city aforesaid, on the fifteenth day of February, one thousand nine hundred and three, and at the city of St. Louis aforesaid, and state aforesaid, unlawfully and feloniously did aid and assist in making and establishing a `policy' as a business and avocation in the state of Missouri, against the peace and dignity of the state." A severance was granted to the defendant Cronin, and at the February term, 1904, he was put upon his trial, convicted, and found guilty of aiding and assisting in making and establishing a "policy," and his punishment assessed at six months in the city jail. After an unsuccessful motion for new trial, he took his appeal to this court.

The indictment is predicated upon section 2219 of the Revised Statutes of Missouri of 1899, which provides: "If any person shall make or establish, or aid or assist in making or establishing, any lottery, gift enterprise, policy or scheme or drawing in the nature of a lottery as a business or avocation in this state. * * * upon conviction [he] shall be punished by imprisonment in the penitentiary for not less than two nor more than five years, or by imprisonment in the county jail or workhouse for not less than six nor more than twelve months." The state's evidence tended to show that all three of the witnesses Winterer, Linnebar, and Tarrant, with others, were policy vendors, and each one went by a number; Winterer was 23, Linnebar was 22, and Tarrant was 28. It was their custom for some months to sell and dispose of tickets, each one of which was numbered, and the number of the ticket was placed on the vendor's book. At certain hours of each day the book was closed, and the vendor turned the same into the headquarters, which was an establishment on South Tenth street, in St. Louis, called "The Henry Book." Some of the witnesses visited this place twice a day, at noon and at 5 p. m. Others visited there at noon, at 5 p. m., and at 9 p. m. As stated by the witness Tarrant, they went there to turn in their books and money. All the money received by these policy vendors for tickets sold by them was turned into this place, except a commission of 25 per cent. which was allowed them. All who visited this place went by way of the alley entrance, and, although there was a front door, there was no evidence that any one could or ever did come in at the front door. This alley entrance opened into a room which had shelves and benches all around, each vendor had his seat, and his number was on the wall near his seat. There was a partition across this room, and a door and a small window in the partition. This door was opened occasionally, at which time a person would come out from behind and make out the drawing. None of the vendors ever passed behind the sacred portals of this partition, but the defendant Frank Cronin, and his codefendant, Louis Miller, were often seen behind there, especially at the hours of 12, 5, and 9, when the business was conducted through the window. One witness, who was a frequenter of this place, said that he never saw any one behind this partition except the defendant and Miller. By looking through the window in this partition, the witness could see some chairs behind the partition, and also a table that had some money on it. Each vendor made it convenient to arrive at this interesting place 5 or 10 minutes before the hours above mentioned. After entering the room at the stated times, each vendor would sit on his bench, take out his book and deposit in a pigeonhole, and it was then laid on the table. In about 10 minutes they would get to drawing, and each vendor would take his book and see if he had made a "hit." The drawings were given out two or three at a time, and were wrapped up in a piece of tissue paper about 12 inches long. Each paper was numbered, and by examining the numbers on his book the vendor could see if he had made a "hit." The persons possessing the lucky number (or hit) would make out a "hit" slip and throw it in at the window, and the money would be paid to him in an envelope which was passed out to him through the window from behind the partition. A three number play was called a "gig," and two numbers were called a "saddle." While the money was usually handed out by Miller, yet on one occasion when the witness Winterer had made a hit and some money was paid to him in the above manner, on counting it, he found that the full amount had not been paid, so defendant Cronin handed him the balance due. At that time defendant was sitting back of the partition by the side of the table. At another time defendant Cronin came out from behind the inner office and gave out the drawings, while the vendors were sitting down; or, as expressed by witness, he "just walked around and distributed them." At another time, this witness testified that the slips were given out by defendant and a man named Dutch Fred. Witness Linnebar said that the drawing was sometimes handed to him by defendant, sometimes by other parties; and that he had seen defendant standing up behind the partition waiting for the drawings to be handed back to him. One witness testified that he saw def...