State v. Frisby
| Decision Date | 08 November 1948 |
| Docket Number | 40774 |
| Citation | 214 S.W.2d 552 |
| Parties | State of Missouri, Respondent, v. N. E. (Newt) Frisby, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Ripley County Criminal Appeal Judge Randolph H. Weber
Affirmed
Defendant and another were charged with setting up and keeping a gambling device (Section 4675 R.S. 1939, Mo R.S.A.§ 4675). A severance was granted. Upon trial of defendant a jury returned a verdict of guilty; and, the jury being unable to agree upon the punishment to be inflicted the trial court assessed defendant's punishment at two years in the state penitentiary (Section 4093 R.S. 1939, Mo R.S.A. § 4093). Defendant has appealed from the ensuing judgment.
Defendant-appellant challenges the sufficiency of the information in charging a gambling device within the meaning of Section 4675, supra. The Section enumerates "any table or gaming device commonly called A B C, faro bank E O, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, 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 - - - ."
The gambling device charged in the information was a "crap table." Such a device is not among those specifically enumerated in the Section and so it is necessary that there should be sufficient averments in the charge showing the device belongs to the enumerated class, and, therefore, within the general inhibition of the Section. State v. Wade, 267 Mo. 249, 183 S.W. 598; State v. Harper, Mo. Sup., 190 S.W. 272; State v. Shepherd, Mo. Sup., 192 S.W. 427; State v. Crayne, Mo. Sup., 216 S.W. 47; State v. Morris, 272 Mo. 522, 199 S.W. 144; State v. Herndon, 339 Mo. 283, 96 S.W.2d 376; State v. Chaney, Mo. Sup., 106 S.W.2d 483; State v. Chaney, Mo. Sup., 188 S.W.2d 19. Such averments are necessary in order that the court may know the alleged device is within the purview of the statute, and in order that defendant may be informed of the nature and cause of the accusation against him. State v. Wade, supra.
In the Morris and Herndon cases it was pointed out that it is not the game but the device at which the statute is aimed. See also State v. Chaney, supra, 188 S.W.2d 19. And it was said in State v. Wade, supra, a table duly marked and arranged for the purpose on which the game of craps is played by means of dice for money or property is within the purview of the statute. See again State v. Herndon, supra. In the Herndon case it was held an information, charging setting up and keeping a table or device not among those specifically enumerated in the Section, was fatally defective. The information did not specify the manner in which the table was adapted for the purpose of playing games of chance (in that case as in the instant case - craps). State v. Herndon, 339 Mo. at page 287, 96 S.W.2d at pages 378-9. See also State v. Morris, supra; State v. Chaney, supra, 106 S.W.2d 483; State v. Humphries, Mo. Sup., 119 S.W.2d 401; and State v. Chaney, supra, 188 S.W.2d 19. An examination of the information in the instant case shows it is not in such respect insufficient.
The information charged defendant (and one Bert Fox) "did then and there unlawfully and feloniously set up and keep a gambling device, to-wit a crap or dice table, commonly so called, dice, and chips, and the said table, dice and chips were by them thereby adapted, devised and designed for the purpose of playing certain games of chance, for money and property, commonly called craps or dice, and became and thereby was a gambling device, in this, to-wit: that said table was covered with a green cloth which was marked off and designed by having thereon numbers corresponding to numbers on a pair of dice, and the words, 'Don't Pass, Come, and Bar Three' thereon, terms commonly used in gambling with dice, and did thereon throw and allow to be thrown dice or craps, and did use chips which had been purchased for good and lawful money of the United States, and that by means of said table, dice and chips certain games of chance, commonly called dice or craps were played, and thereon did play against Johnie Sence, and divers other persons unknown, and took from them by means of said crap or dice table, dice and chips, good and lawful money of the United States - - - ."
We notice the information charged defendant (and another) did set up and keep a gambling device, to wit, a crap or dice table, dice and chips; and that the table, dice and chips were by them adapted, devised and designed for the purpose of playing certain games of chance, craps or dice, for money or property. The information continued in alleging how, or in what manner, the device (table, dice and chips) was adapted for the playing of certain games of chance, dice or craps, for money - the table was covered with green cloth marked off and designed by having thereon appropriate numbers and terms commonly used in gambling with dice. And the information further charged that by means of said table, dice and chips certain games of chance, dice or craps, were played for money.
We regard the information as sufficient in charging a gambling device within the purview of the Section 4675, supra. State v. Chaney, supra, 188 S.W.2d 19; State v. Herndon, supra; State v. Morris, supra; State v. Wade, supra.
Defendant contends the evidence was insufficient to support a verdict of guilty and the defendant's demurrers to the evidence should have been sustained. Defendant also assigns error in the giving of Instructions Nos. 3 and 4 submitting the issue of defendant's guilt, acting jointly with another or alone, in setting up and keeping the table or device in issue. Defendant's assignment of error in giving the instructions is based upon his contention the evidence was insufficient to justify the submission of the State's case to the jury.
There was evidence introduced tending to show that on the 2d day of February, 1947, one Johnny Sence was present and saw defendant and Fox in a little house to the southwestward of Neelyville. The house had been built only "a couple of weeks" before on lands belonging to one Biggs. (A photostat of a memorandum of lease and receipt for rent to Bert Fox was introduced into evidence by defendant.) The witness Sence testified he had seen defendant and Fox (and several other people) "down there" at the time the house was being constructed. The house consisted of one big room and one little room. There were no beds in the house. In the big room there were dice, and a "crap table" on which was "what I call a lay out." The witness shot craps on the table. H...
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