State v. Davis

• Decision Date: 14 May 1907
• Citation: 102 S.W. 528,203 Mo. 616
• Parties: STATE v. DAVIS.
• Court: Missouri Supreme Court

102 S.W. 528

203 Mo. 616

STATE v. DAVIS.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. CRIMINAL LAW — CHANGE OF VENUE — APPLICATION — REFUSAL.

Where, on the calling of a criminal case for trial, the state announced ready, and counsel for accused asked for time in which to prepare an application for a continuance, which was granted, and counsel for accused without intimating that he desired to make an application for a change of venue made such an application on the ground of the prejudice of the judge, it was properly refused.

2. SAME — APPEAL — HARMLESS ERROR — INSTRUCTIONS FAVORABLE TO ACCUSED.

Where, on a trial for operating a gambling device, the evidence showed that the acts constituting the offense were committed in 1906 and prior to February 26th of that year, the time of the filing of the original information, the error in an instruction that the jury on finding that accused in the year 1906, and at any time prior to February 26th of that year, kept and operated a gambling device, should find him guilty, operated in favor of accused, in that he might have been convicted of an offense, committed within three years of the information, and he could not complain.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

A. M. Davis was convicted of operating a gambling device, and he appeals. Affirmed.

From a judgment of the circuit court of Jasper county, Mo., convicting him of setting up, keeping, and operating a certain table and gambling device, commonly called a "crap table," devised and designed for the purpose of playing games of chance for money and property, defendant appeals. On February 26, 1906, the prosecuting attorney of Jasper county filed an information, and on March 6, 1906, he filed an amended information, duly verified, charging that the defendant on the ____ day of February, 1906, feloniously did set up, keep, and operate a certain table and gambling device, commonly called a "crap table," which table was adapted, devised, and designed for the purpose of playing games of chance for money and property. At the March term, 1906, of the Jasper county circuit court, and at the convening of court on the 14th day of March, this being the first case on the docket for that day, the state, by W. N. Andrews, prosecuting attorney, announced ready for trial, but the defendant announced that he was not ready, and asked the court to grant him time to prepare an application for a continuance. This request was granted. While waiting for the supposed application for a continuance, the court ascertained that the defendant was preparing an application for a change of venue, whereupon the court called the case for trial and so notified the defendant. The jury was sworn to answer questions, and the state proceeded to make its examination and finished the same, when the defendant filed the following application and affidavits for a change of venue from the Honorable Howard Gray, the trial judge of the Jasper county circuit court:

"State of Missouri, Plaintiff, v. A. M. Davis, Defendant. In the Circuit Court of Jasper County, Mo. March Term, at Carthage, 1906. Application for change of venue. Comes now the defendant, A. M. Davis, and represents and shows to the court that he cannot safely proceed to the trial of said cause where it is now pending in Division No. 1 of said court, the Hon. Howard Gray, Judge, on account of the bias and prejudice of said Hon. Howard Gray, and that he cannot have a fair trial of said cause before said judge. Wherefore he prays to have the change of venue as by law provided. A. M. Davis."

"State of Missouri, County of Jasper — ss.: I, A. M. Davis, being duly sworn upon my oath depose and say that I have read the foregoing application for change of venue and that the matters and facts therein contained are true, and that the Hon. Howard Gray, judge of Division No. 1, is biased and prejudiced in said cause, and I cannot have a fair trial of said cause before the Hon. Howard Gray. That said information of the bias and prejudice of the Hon. Howard Gray first came to this applicant since the adjourning of this court yesterday, Tuesday, the 13th day of March, 1906. A. M. Davis. Subscribed and sworn to before me this 14th day of Mch., 1906. A. F. Carmean, Clerk, by J. W. Gray, D. C. [Seal.]"

"State of Missouri, County of Jasper — ss.: We, Bert Mann and Walter Miller, upon our oath depose and say that we have read and know the contents of the foregoing application for a change of venue, and that the same is true, and that we are residents and citizens of Jasper county, Mo., and are not of kin or counsel to the defendant. Bert Mann, Walter Miller. Subscribed and sworn to before me this 14th day of March, 1906. A. F. Carmean, Clerk, by J. W. Gray. [Seal.]"

The court overruled this application, and in doing so made the following order: "Now comes the defendant and files herein his application for a change of venue in this case. By consent the same is taken up, and being seen, heard, and fully understood by the court the same is overruled" — to which action of the court the defendant objected and excepted at the time. Whereupon the defendant examined the jurors, and proper challenges being made the case proceeded. The testimony upon the part of the state tended to show that Sheriff Marrs, Deputy Sheriff Marquiss, and Deputy Sheriff Keir raided a certain room in the second story over the Woodbine Saloon in the city of Joplin on one Saturday night in the month of February, 1906. Prior to forcing their way into said room, these officers went up in an alley, climbed over a fence, and got upon a flat roof of a one-story building, and looked into the windows to see what was going on in said room. They saw a number of men up there, including the defendant, who were engaged in gambling. The defendant was standing behind a crap table dealing craps, and several others were around the table on the outside, rolling two...