State v. Deppe, 45032
| Decision Date | 13 February 1956 |
| Docket Number | No. 45032,No. 1,45032,1 |
| Citation | 286 S.W.2d 776 |
| Parties | STATE of Missouri, Respondent, v. George DEPPE, Appellant |
| Court | Missouri Supreme Court |
Rader, Love & Falzone, Clayton, for appellant.
John M. Dalton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant and two others were jointly charged by indictment of seven counts averring violations of Section 563.360 RSMo 1949, V.A.M.S. A severance was granted and defendant was tried separately. At the conclusion of the evidence, the trial court sustained a motion for a judgment of acquittal as to Counts II to VII, inclusive. The jury found defendant guilty as charged in Count I and assessed his punishment at imprisonment in the county jail for one year and a fine of $1,000. Defendant has appealed from the ensuing judgment.
Count I of the indictment averred that defendant and two others 'on the 30th day of September, A.D., nineteen hundred and fifty-four at said County of St. Louis, and State of Missouri, did then and there unlawfully, knowingly, wilfully and feloniously occupy a building, or a part thereof, known as 3139 Luda Avenue, City of Maplewood in the County of St. Louis and State of Missouri, with certain Turf programs, scratch sheets, tabs containing notations of bets, listing races, tracks, names of horses, amounts bet and name or initial of bettor, instruments and devices, to-wit:
'For the purpose of recording or registering bets and wagers upon the results of trials or contests of skill, speed, or power of endurance of beasts, which were to be made or were to take place without the State of Missouri, contrary to the form of the Statutes in such case made and provided, and against the peace and dignity of the State.'
It is not contended by defendant-appellant that Count I of the indictment is not sufficient, charging as it does the crime of bookmaking substantially in the language of the first subdivision of the statute, 563.360, supra. See State v. Saussele, Mo.Sup., 265 S.W.2d 290. However, defendant-appellant contends the evidence, hereinafter stated in part, was insufficient to sustain a conviction under Count I. It is asserted the evidence was insufficient in tending to show an 'occupancy' by defendant in the sense of an occupancy contemplated by the word 'occupies' as used in the statute. Defendant also contends counsel for the State in his opening statement failed to state such facts which the State expected to prove as would adequately apprise defendant of the facts and of the course of the trial contemplated, or as would justify a court in submitting the issue of defendant's guilt to a jury. Defendant further contends it was improper for State's counsel in his opening statement to allude to the facts, and it was prejudicially erroneous for the trial court in instructing the jury to advise the jury of the facts that defendant had been jointly charged with others; that a severance had been granted; and that defendant 'alone is now on trial.' And defendant further contends that the trial court erroneously permitted a witness for the State to testify that he had learned that 'Bud,' theretofore referred to in his testimony of the witness, was one and the same person as defendant.
The State introduced evidence tending to show that on September 29, 1954, a house situate on Luda Avenue in Maplewood was under the surveillance of Captain Moeller, a deputy sheriff of St. Louis County assigned to gambling, liquor, vice and narcotic cases. On September 30th at approximately 2:45 in the afternoon, the Captain and three other deputies, Mourton, Hanneken and Chamblin, raided the place on Luda. Having entered, the Captain proceeded to the northwest room on the second floor where he observed two men--one, a Mr. Anderson, was lying on a bed apparently ill, and the other, defendant, was sitting in a chair clothed only in his underwear. There was a small table with a telephone instrument on it. On this table there were a television set (the set was 'off'), betting tabs, a box containing pencils, erasers, and blank forms; and there were sheets of paper on which were written the names of horses, prices marked, amounts bet, and the bettors on the first few races of September 30th. Scratch sheets were also found in the room. A list of names and telephone numbers was found on the top of a cabinet. The Captain, testifying as an expert, explained how these various devices were used in 'book-making' on racing events.
When the officers entered, 'screw caps on each end' of the telephone had been removed, and the 'yellow wire' connecting the telephone to a box on the wall had been disconnected. When one lifted the receiver of the telephone nothing could be heard. Defendant was sitting on one of the detached telephone 'caps,' on a scratch sheet or National Turf Program and on an Illinois Turf Concensus for September 30th. The officers also found one Primo Caudera hidden in the closet of another room. The other telephone 'cap' was found in the room 'that Caudera was in.' The Captain reassembled the telephone instrument and reconnected the wiring. The telephone began to ring 'constantly.' The Captain spoke with those who called in over the telephone. These persons asked for and gave information. The Captain testified 'Mr. Eskeles (counsel for the State): Q. Captain, you were there answering the phone. People would call up on the phone. Who would they ask for? A. They asked for Bud and for Larry.
'Mr. Love (counsel for defendant): I'm going to object to that answer and move it be stricken for the reason that is not the name of this defendant and anything further that was said does not in any way connect this defendant to that conversation and I move that the Court instruct the jury to disregard it.
'The Court: I will overrule the objection.
'Mr. Love: I object for the reason it calls for a conclusion on the part of the witness and calls for hearsay evidence, unless it is first determined how he learned.
'A. George Deppe.
We think the Legislature in the first subdivision of Section 563.360, supra, by the use of the language, 'Any person who occupies any room, * * * building or enclosure, * * *' was not intending the word 'occupies' should be understood as an 'occupancy' such as would constitute a mode of acquiring a right of ownership in property as defendant-appellant urges. The Legislature speaks of any person who 'occupies any room, * * * building or enclosure, * * * with any book, sheet, blackboard, instrument or device or substance for the purpose of recording or registering bets or wagers * * *.' The offense under the first subdivision of the statute is considered complete when the person charged occupies a room, building, etc., with any book, sheet, etc., for the purpose of registering bets or wagers. State v. Oldham, 200 Mo. 538, 98 S.W. 497. In our case there was substantial evidence tending to show the defendant was physically present, and in this sense he was an occupant of the northwest room on the second floor of the building on Luda. Now his conduct demonstrated that his physical presence was definitely in connection with scratch sheets or turf programs and with a part of the dismantled telephone upon which he sat and attempted to conceal. He had taken off his outer clothing and had settled down comfortably garbed only in his underwear in handy proximity to other scratch sheets, instruments and paraphernalia used in bookmaking, including a telephone. We have no doubt that this evidence was substantial in circumstantially satisfying the statutory element that he was 'occupying' the room, that is, a part of the building with bookmaking devices for the purpose as charged.
It is provided by Section 546.070 RSMo 1949, V.A.M.S., that, a jury having been impaneled and sworn in a criminal case, 'the trial may proceed in the following order:
'(1) The prosecuting attorney must state the case and offer the evidence in support of the prosecution; * * *.'
It has been said in State v. Loeb. Mo.Sup., 190 S.W. 299, 303, that the mandatory nature of this provision is not only evident from its form, but...
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