State v. Etchman

• Decision Date: 22 November 1904
• Citation: 83 S.W. 978,184 Mo. 193
• Parties: THE STATE v. ETCHMAN, Plaintiff in Error
• Court: Missouri Supreme Court

83 S.W. 978

184 Mo. 193

THE STATE v. ETCHMAN, Plaintiff in Error

Supreme Court of Missouri, Second Division

November 22, 1904

Error to Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.

Reversed and remanded.

Culver Phillip & Spencer for plaintiff in error.

(1) The indictment charges no offense. The language of the statute makes it clear that it is no offense to set up or keep a table or device which is adapted or devised for the purpose of gaming, unless it is also designed for that purpose. In other words a person may set up or keep a roulette table which is adapted and devised for the purpose of playing a game of chance for money and property; but if it is not designed, i. e., intended, for that purpose he is guilty of no offense. We do not mean to say that, in order to constitute the offense, a person should be enticed, induced or permitted to bet or play at or upon such a device for money or property, for the statute makes no such requirement. But we do say that the mere setting up or keeping a faro bank or other device covered by statute is not unlawful unless it is designed for the purpose of playing a game of chance for money or property. If the device is set up for that purpose then the keeper is guilty when he permits others to play thereon, whether money or property, or anything else is bet or not. The purpose for which the device is exhibited and not what is bet upon or by means thereof is the essential element of the offense. The indictment alleges that it was "adapted" and "devised," but fails to allege that it was "designed" for the purpose, and is, therefore, fatally defective. State v. Gilmore, 98 Mo. 213. An indictment based upon a statute must contain all the forms of expression and descriptive words which will bring the defendant precisely within the definition of the statute. State v. Emerich, 87 Mo. 110; State v Miller, 132 Mo. 297. It is essential that an indictment for a statutory crime should aver every essential fact constituting the offense. State v. Kirby, 115 Mo. 440; State v. Baskett, 52 Mo.App. 389; State v. Helen, 6 Mo. 263; State v. Bryant, 90 Mo. 537; R. S. 1899, sec. 2194; State v. Gilmore, 98 Mo. 209. Of course, "playing cards" are a device within the meaning of section 2195 prohibiting betting on any kind of a gambling device, but the defendant is not indicted for betting. Is the defendant guilty because he set up or kept a "roulette wheel?" The statute does not specifically mention a roulette wheel. It does mention a roulette table. The statute applies only to those devices specifically mentioned and other devices of a similar kind. State v. Bryant, 90 Mo. 534; State v. Gilmore, 98 Mo. 209. (2) The indictment charges that the defendant set up and kept (1) a roulette wheel; (2) a poker table upon which are used (3) poker chips; and (4) playing cards. Neither a poker table nor poker chips nor playing cards separately nor all combined fall within the class of tables or devices prohibited by the statute. But it may be contended by the State that the court will not take judicial knowledge of the difference between a roulette table and a roulette wheel. If this be true an equally insurmountable obstacle confronts the State. It is certain that the indictment does not charge defendant with keeping any device specifically named in the statute. The statute prohibits a roulette table. The defendant is charged in the indictment with keeping a roulette wheel. It is not alleged that a roulette wheel is a table or device similar in kind to a roulette table or any of the other devices specifically enumerated. Unless a roulette wheel is a device similar in kind to a roulette table, no offense is charged. Huff v. Com., 14 Gratt. 643. (3) A motion in arrest of judgment was filed in this case, and the record shows that it was never passed upon by the trial court. This case is, therefore, prematurely in this court unless the position assumed by the trial court is correct. That court refused to pass upon the motion in arrest upon the theory that no motion in arrest could be filed after a plea of guilty, and, therefore, in contemplation of law there was no motion in this case. On this theory, to save our rights, we brought this case here on writ of error, and it is properly here now. If the trial court is in error, the writ of error was prematurely sued out, and it ought to be dismissed with directions to the trial court to pass upon the motion in arrest. The fact that the defendant entered a plea of guilty does not preclude him from attacking the indictment as charging no offense. If no crime is charged in the indictment, none is confessed by pleading guilty thereto. State v. Levy, 119 Mo. 434; State v. Ulrich, 96 Mo.App. 689.

Edward C. Crow, Attorney-General, for the State.

FOX, J. Gantt, P. J., concurs; Burgess, J., absent.

OPINION

FOX, J.

As was said in the case of State v. Rosenblatt, decided at this term, and reported in 185 Mo. 114: "From a conviction and sentence by the criminal court of Buchanan county, the defendant has taken his writ of error to this court. Preliminary to any investigation as to the sufficiency of the indictment, the Attorney-General has moved to dismiss the writ of error on the ground that the cause was not prosecuted to a final judgment in the criminal court, because there is a motion in arrest of judgment yet pending before and undisposed of by the criminal court. And also because the record shows that defendant entered a plea of guilty and agreed to the judgment against him, and that no writ of error will lie in such case. For a proper understanding of the questions thus raised, we must look to the record certified to us."

The indictment upon which this prosecution is based, omitting caption, is as follows:

"The grand jurors of the State of Missouri, within and for the county of Buchanan aforesaid, being duly impaneled and sworn upon their oaths, do present that William Etchman on the 31st day of March, 1903, at the county of Buchanan and State aforesaid, did unlawfully and feloniously set up and keep gaming tables and gambling devices, to-wit, one roulette wheel, commonly so-called; one poker table, commonly so-called, upon which are used poker chips, commonly so-called, and cards, commonly called playing cards, which said gaming tables and gambling devices were adapted, devised for the purpose of playing games of chance for money and property, and did then and there unlawfully and feloniously entice and permit divers persons, to the said grand jury unknown, to bet and play at and upon and by the means of said gaming tables and gambling devices, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

Upon the legal propositions involved in the motion to dismiss the writ of error, it is sufficient to say that the law applicable to them was fully discussed and correctly applied in State v. Rosenblatt, supra. It is unnecessary to repeat what was said in that case. It is decisive of the questions presented upon this motion.

This leads us to the consideration of the only remaining proposition involved in this cause; that is as to the sufficiency of the indictment.

The statute upon which this indictment is predicated (sec. 2194, R. S. 1899), provides:

"Every person who shall set up or keep any table or gambling device commonly called A B C, faro bank, E O, roulette, equality, keno or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device, or on the side or against the keeper thereof, shall, on conviction, be adjudged guilty of a felony," etc.

It is apparent that the indictment in this cause does not charge the commission of the offense in the language of the statute....