State v. Hardy

• Decision Date: 14 March 1955
• Docket Number: No. 44045,44045
• Citation: 276 S.W.2d 90,365 Mo. 107
• Parties: STATE of Missouri, Respondent, v. George Washington HARDY, Appellant.
• Court: Missouri Supreme Court

Page 90

276 S.W.2d 90

365 Mo. 107

STATE of Missouri, Respondent, v. George Washington HARDY, Appellant.

No. 44045.

Supreme Court of Missouri, En Banc.

March 14, 1955.

Morris A. Shenker, William R. O'Toole, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was convicted of aiding and assisting in establishing a lottery as a business and avocation, in violation of Sec. 563.430 (statutory references are to RSMo and V.A.M.S.); and was sentenced to two years in the penitentiary. Defendant has appealed.

Defendant alleges error in overruling his motion to suppress evidence, in receiving in evidence admissions made by him at the time of his arrest, and in refusing his motions for a directed verdict. Defendant also complains of the argument to the jury by the State's attorney.

Defendant's motion to suppress evidence was to prevent the use in evidence of certain lottery paraphernalia in the hands of the police on the ground that it was seized by officers before defendant's arrest without a warrant, claiming the search and seizure was unreasonable, illegal and violative of Secs. 15 and 19 of Article 1 of the Missouri Constitution. Section 15 provides that the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and Section 19 provides that no person shall be compelled to testify against himself in a criminal cause.

The evidence on the motion to suppress was that defendant was arrested in a room on the ground floor of a three story boarding house. (There was a sign on the house 'Rooms for Rent'.) The evidence was the testimony of the two arresting officers who watched the place from 9:15 to 9:45 P.M. and saw three men and a woman enter this room. The window shades, of the two windows of the room, were drawn but there was an L shaped tear in one of them and the officers could see through it into the room. They saw a woman seated on a chair looking at an open policy book with drawings in her hand. Defendant was standing near a table in the center of the room. One of the officers, with eight years of experience on the gambling squad, had seen numerous books of the same kind used for policy. The officers went into the common hallway of the boarding house and saw a man named Clarkson come out of the room with result drawings in his hand. He was arrested, the drawings seized, and the officers entered the room (where defendant was) through the door he had left open. Defendant was then arrested and the officers took from him ninety-nine policy result drawings marked IXL Class 5412; seven result drawings marked Class 5411; twenty carbon copies of policy writers' top sheets, Class 5412, an original take sheet, five policy hit slips and thirty-six dollars in money. These articles and the money were all in the waistband of defendant's trousers. Defendant made some statements to the officers after his arrest which will be referred to in considering the evidence on the merits. We considered similar contentions on a motion to suppress in State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551. There, as here, the officers saw the policy papers before making the arrest. We held that St. Louis police officers could make a lawful arrest 'when there are reasonable grounds to suspect that a misdemeanor has been committed' citing Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; Commission Row Club v. Lambert, Mo.App., 161 S.W.2d 732; that 'when a person is lawfully arrested, the arresting officer may take from him articles of value as evidence', citing State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Williams, 328 Mo. 627, 14 S.W.2d 434; and that 'as to the claim that the use of these policy slips in evidence violates the constitutional provision against self-incrimination, this has been ruled against defendant's contention', citing State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002. See also City of St. Louis v. Washington, Mo.App., 223 S.W.2d 858; City of St. Louis v. Simon, Mo.App., 223 S.W.2d 864. Defendant relies mainly on State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415 and State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383. In those cases, the only basis for the search was suspicion and the facts were very different. In this case, the officers first saw the paraphernalia of the lottery and observed the actions of several persons in its use under defendant's direction; and it may also be noted that a felony is herein involved. We hold that the Court properly overruled the motion to suppress.

Defendant's contention that he was entitled to a directed verdict (see S. C. Rule 26.10, 42 V.A.M.S.) depends upon his contentions that the motion to suppress should have been sustained and that the admissions he made at the time of his arrest were inadmissible because the corpus delicti had not been established. If the lottery paraphernalia taken at the time of defendant's arrest and the admissions he then made were admissible in evidence, it is obvious that a case for the jury as to defendant's guilt was made by the State. Defendant relies on the statements made in State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551 and State v. Emerson, 318 Mo. 633, 1 S.W.2d 109, that 'The two elements necessary to prove the corpus delicti of a lottery in violation of Sec. 563.430 are: (1) the establishing of a lottery by someone, (2) that the person charged aided or assisted in making or establishing it.' This statement is incorrect and the rulings in those two cases to that effect should be and are hereby overruled. As pointed out in State v. Price, 361 Mo. 1034, 238 S.W.2d 397, 399, it would have been correct in those two cases to have said: 'that the two elements above quoted were necessary to establish guilt of the defendant rather than that they were necessary to establish corpus delicti.' We stated the correct rule in the Price case as follows: "In this state the corpus delicti has never been construed to require or consist of more than these two elements: (1) Proof, direct or circumstantial, that the specific loss or injury charged occurred; (2) someone's criminality as the cause of the loss or injury. Or tersely, (1) the act; (2) the criminal agency of the act (other than the accused's confession). * * * But, once evidence other than the defendant's confession shows that the specific crime charged was committed by someone, then the defendant's confession is admissible and, of course, if believed completes the case." See also State v. Skibiski, 245 Mo. 459, 150 S.W. 1038; State v. Saussele, Mo., 265 S.W.2d 290. Thus, while it is essential that there be at least circumstantial evidence of the existence of a lottery, it is not necessary to prove the corpus delicti to show that the person charged aided or assisted in making or establishing it. Therefore, when the evidence is sufficient to show the act and the criminal agency of the act (the existence of a lottery and assistance of someone in operating it), then the confession of the defendant is admissible to show the second element necessary to establish his guilt, namely: that the defendant aided or assisted in making or establishing the lottery and also that he did so as a business or avocation.

In addition to the facts shown on the motion to suppress, hereinabove stated, which were repeated in the trial on the merits, one of the officers, Sergeant Bloecher, testified as an expert on policy operations, showing how the game was played and the paraphernalia used. Bets were made through policy writers who recorded numbers chosen by the bettors in a book, making an original and two carbon copies. These were called top sheets and they were identified by the writer's book number and also a class number indicating the particular drawing in which the bettor would participate. The policy writers would go to the manager and give him two copies, keeping the other in the book. They would also give the manager the money to cover the bets less the writer's commission. The manager listed the bets on a take sheet and turned it over with the top sheets to a 'pick up man' for the operator of the lottery, retaining a copy of the take sheet and the money. The 'pick up man' would deliver these to the operator of the policy company and get the result drawings from him, or his 'cut loose man', showing the winning numbers in the drawing. These result drawings showed the name of the company and the class number indicating the time of day of the drawing, using odd numbers for the morning drawing and even numbers for the evening drawing. For a description of these result drawings, also called result ballots, see City of St. Louis v. Washington, 223 S.W.2d loc. cit. 860. The 'pick up man' would bring these result drawings back to the manager, who distributed them to the writers and they distributed them to the players. The writers would pay the winners of small amounts; apparently large winners collected through the manager. When one of the writers' bettors had a winning number, the writer would prepare a hit slip showing his book number, the class number and the amount of money won. He would turn this over to the manager and get the money to pay it. These hit slips were taken by the 'pick up man' to the operator of the company. Sergeant Bloecher said (based on his experience and knowledge of policy operations) that the presence of the carbon copy top sheets indicated that the policy writers had turned in the bets they had recorded for drawing 5412; that the presence of the result drawings indicated that the drawing was held, the lottery completed, and that the winning numbers for drawing 5412 were those shown thereon; that the presence of the take sheet indicated that the writers whose...