State v. Edgen

• Decision Date: 11 May 1904
• Citation: 181 Mo. 582,80 S.W. 942
• Parties: STATE v. EDGEN.
• Court: Missouri Supreme Court

80 S.W. 942

181 Mo. 582

STATE v. EDGEN.

Supreme Court of Missouri.

May 11, 1904.

CRIMINAL LAW — SWINDLING — THREE-CARD MONTE GAME — INDICTMENT — SUFFICIENCY — DEFINITION — EVIDENCE — SUFFICIENCY.

1. Rev. St. 1899, § 2216, makes it an offense for any one to deal, play, or practice the confidence game or swindle known as "three-card monte." Held, that an information charging defendant with having unlawfuly and feloniously played and practiced the confidence game or swindle known as "three-card monte," and then and there feloniously attempted to obtain from prosecutor a large sum of money, is sufficient.

2. One who was an accessory before the fact to an offense under the statute might be prosecuted as if he had actually played and practiced the game, Rev. St. § 2364, declaring that an accessory before the fact may be punished the same as his principal.

3. On a prosecution under Rev. St. 1899, § 2216, making it an offense to practice the swindle known as "three-card monte," evidence held sufficient to sustain a conviction.

4. The phrase "three-card monte," as used in Rev. St. 1899, § 2216, making it an offense to practice three-card monte, means a sleight of hand game or trick played with three cards, one of which is usually a court card; the performer throwing the card face down on a table or cloth so as to deceive the eye of the on-looker, who is induced to bet that he can pick out the court card.

Robinson, C. J., and Marshall and Fox, JJ., dissenting.

In Banc. Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

John Edgen was convicted of practicing the three-card monte game, and he appeals. Affirmed.

The following is the opinion in Division (BURGESS, J.):

In June, 1892, the defendant was convicted in the circuit court of Audrain county, and his punishment fixed at five years' imprisonment in the penitentiary, under an information lodged by the prosecuting attorney with the clerk of said court, charging that he did at said county, unlawfully and feloniously, deal, play, and practice the confidence game or swindle known as "three-card monte," and then and there and thereby, unlawfully and feloniously, did attempt to obtain from B. O. Sims a large sum of money to wit, $5,000, lawful money of the United States of America, of the value of $5,000, against the peace and dignity of the state. Defendant appeals.

It appears from the record that on the forenoon of the 8th day of May, 1902, defendant went to the home of one B. O. Sims, a farmer living about six miles northwest of Mexico, in Audrain county. He was in a buggy, and pretended to Sims to be a banker from Fulton, out on a collecting trip. He stated to Sims that his name was Harris, and that a widow lady by the name of Green, at Fulton, had asked him to look for a good farm which would be desirable for her to buy for her two sons; that he had been referred to the Sims farm. He was told by Mr. Sims that his farm had been offered for sale. Defendant then asked Sims to get in the buggy and go with him that he might look at it. They got in the buggy and started in the same direction from which defendant had come. They had gone but a short distance when they met an elderly gentleman carrying a satchel in his hand, walking down the road. This gentleman proved afterwards to be a man by the name of Hill, a friend to the defendant, and a stranger in that locality. He inquired the way to the railroad. Sims told him it was about three miles the other way. Hill says, "These Yanks around here told me it was the other way." Defendant asked him what he was. Hill said he was from Texas and his name was Thompson; that his father had died, and left him a large cattle ranch in Texas, which he had sold, and that he had plenty of money; that after he had sold the ranch he had come to that locality to visit a sister, but had learned that she was dead, and her husband had moved to Oklahoma; that he had just been to St. Louis, where he got in with some fellows who played a game with him, and he lost about $300. He said he had considerable money left, and exhibited some $1,000 packages and some $5,000. He then proceeded to demonstrate how the game was played. After spreading the lap robe over defendant's and Sims' knees, he took out three cards. He threw them with face down, and asked if they could pick up the card with the picture of a man on it. Defendant tried his hand a time or two, as did also Sims. Hill then said he would give $5 if they could pick up the right card again. Defendant tried and won. Hill said Sims must try before he paid any money. Sims turned the right card, and he and defendant were each handed $5 by Hill. Hill then offered to bet $5,000 against each man that they could not pick up the picture card again. Sims said he had no money to pay if he lost. Defendant says, "Yes, he's all right; he owns all this land around here;" said he had plenty of money. The game was again played, and while defendant told Sims to pick up the wrong card he did not do so, and both defendant and Sims won. Hill paid them each the $5,000. Hill wanted to bet again, but said he must have more money. Defendant and Sims put their money in a box which defendant had in the buggy, and started off, defendant telling Hill they would go get some more money and return for another game. Hill asked defendant what assurance he had that they would return. Defendant handed Hill the key to his box in which the $10,000 was contained, and told him to keep it till they returned. Defendant and Sims started off in the buggy. When they came to a cross-road leading to Mexico, defendant turned his team that way. Sims asked him where he was going. He said, "To Fulton, to get some money to play that old fellow," at the same time asking Sims to do the same thing. Sims told him he did not care to play at the game, and for him to return the money which he had won to Hill. Defendant then said if he (Sims) wouldn't play the game, he would not either. They then turned back and drove up to where Hill was, when defendant took the money from the box and returned it to him. Hill then started on. Defendant and Sims drove to the cross or turn in the road, where Sims got out of the buggy. Defendant drove on down the road to where there was a horse and buggy standing hitched to the fence. Defendant stopped and talked with Hill a few minutes, and when he started on Hill untied the horse, got in the buggy, and the two men drove off together. Both Hill and the defendant were seen in that neighborhood by several persons that day. They were arrested at a railroad station about four miles from Mexico in the afternoon of the same day, Sims having gone to Mexico and informed the officers of his experience with them. The defendant and Hill had been seen together a short while before their arrest. Hill was arrested first, and when the officers began to look for defendant they found him along the side of a freight train that had just pulled in at the station. He told the officer that he was shipping some hogs, at the same time trying to conceal his identity from the officers. Several hundred dollars was found on the person of Hill, but no money of any consequence on defendant. They were taken to Mexico, where Hill was discharged and defendant held under information. Defendant was identified by Sims as being the man who came to his house on the morning of May 8th, representing himself to be a banker by the name of Harris, from Fulton.

The evidence shows the game of three-card monte to have been played, but no money was lost by witness Sims. The defendant offered no evidence in his own behalf, but asked the court to instruct the jury to return a verdict of not guilty on the case as made out by the state. This the court refused to do.

The court of its own motion gave the following instructions to the jury, and to the giving of the said instructions defendant then and there excepted, and saved his exceptions at the time:

"If the jury find from the evidence in this case that at the county of Audrain and state of Missouri, on or about the 8th day of May, 1902, one calling himself Thompson did deal, play, or practice the confidence game or swindle known as `three-card monte,' and if the jury further find from the evidence that the defendant was present, intentionally aiding, assisting, encouraging, and abetting the said Thompson in the dealing, playing, or practicing of the said confidence game or swindle known as `three-card monte,' then they will find him guilty under the first count of the information, and assess his punishment at a fine not to exceed $5,000, or by confinement in the penitentiary not less than two or more than five years.

"You are further instructed that the law presumed the defendant innocent of the offenses here charged, and that the burden then rests on the state to show to the jury from the evidence in the case, beyond a reasonable doubt, his guilt as charged in the information.

"Now, if you have a reasonable doubt of the guilt of the defendant, you should give him the benefit of such doubt and acquit him; but a doubt sufficient to authorize an acquittal on that ground ought to be a substantial doubt touching his guilt, and not a mere possibility of his innocence.

"You are further instructed that you are the sole judges of the weight of the evidence and the credibility of the witnesses, and in passing upon such weight and credibility you may take into consideration the demeanor of the witness on the stand, his or her interest, if any, in the result of the suit, his or her prejudice or bias, if any, either for or against the accused, the opportunities of the witnesses to know the facts to which they testify, and disposition to relate them truly and correctly, or otherwise, as well as all the facts and circumstances given in evidence in the case.

"By `three-card monte,' as used in the foregoing instruction, is meant a sleight of hand game or trick played with three cards, one of which is...