State v. Hogle

• Citation: 156 Mo. App. 367,137 S.W. 21
• Parties: STATE v. HOGLE.
• Decision Date: 08 May 1911
• Court: Court of Appeal of Missouri (US)

137 S.W. 21

156 Mo. App. 367

STATE v. HOGLE.

Springfield Court of Appeals. Missouri.

May 8, 1911.

1. GAMING (§ 89) — INDICTMENT — ALLEGATIONS—LOCATION OF BUILDING.

An indictment charging the operation of gambling devices "in a certain building" situated in the county alleged was not defective for not averring the location of the building in which the tables were.

2. INDICTMENT AND INFORMATION (§ 71)— MISDEMEANOR CASES.

The same nicety is not required in charging minor offenses as in charging common-law felonies.

3. INDICTMENT AND INFORMATION (§ 125)— CHARGING SEVERAL OFFENSES.

An indictment under Rev. St. 1909, § 4753, punishing every person who shall permit any gaming table, etc., to be "set up or used" for the purpose of gaming, which alleged that accused unlawfully permitted certain gaming devices to be set up "and" used, was not objectionable for charging two distinct offenses, since the indictment may be drawn in the conjunctive, though the statute uses disjunctive language in defining an offense.

4. CRIMINAL LAW (§ 1167)—APPEAL—HARMLESS ERROR.

That the indictment in a prosecution for gaming charged two offenses, in that it charged the operation of a poker table and of a crap table, was not prejudicial to accused, where the court withdrew the charge of operating a poker table from the jury.

5. CRIMINAL LAW (§ 1032)—APPEAL—PRESENTATION BELOW — OBJECTIONS TO INDICTMENT—CHARGING SEVERAL OFFENSES.

An objection that the indictment charged several offenses cannot be first raised on appeal.

6. GAMING (§ 74)—ELEMENTS OF OFFENSE— POSSESSION OF ROOM.

The state must prove in a prosecution for keeping and operating gaming tables that the room in which the tables were operated was in accused's actual possession or control.

7. GAMING (§ 101)—PROSECUTIONS — JURY QUESTION.

Evidence in a prosecution for keeping and operating gaming tables held to make it a jury question whether accused had actual possession or control of the room in which the tables were.

8. CRIMINAL LAW (§ 741)—APPEAL—FINDINGS —CONCLUSIONS.

It is the province of the jury in the trial court to weigh the evidence.

9. CRIMINAL LAW (§ 752)—TRIAL—DEMURRER TO EVIDENCE.

The theory of a peremptory instruction in the nature of a demurrer to the evidence is that demurrant for the purposes of the demurrer admits as true all material evidence of the other party, but denies that it makes a prima facie case.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Will Hogle was convicted of unlawfully maintaining a gaming table, and he appeals. Affirmed.

J. J. Cope and W. P. Elmer, for appellant. Lawrence T. McGee, Pros. Atty., and Eugene W. Bennett, Asst. Pros. Atty., for the State.

NIXON, P. J.

Appellant was convicted upon an information under section 4753, R. S. 1909, charging "that Will Hogle on the ____ day of May, 1909, at the county of Dent and state aforesaid, did then and there unlawfully permit certain gaming devices and gaming tables, to wit, one crap table, commonly so called, upon which dice are used, 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 gaming devices were adapted, designed, and devised for the purpose of playing games of chance for money and property, to be set up and used for the purpose of gaming, in a certain building there situate and under the control and occupied by him, the said Will Hogle, against the peace and dignity of the state." Upon trial in a justice's court defendant was found guilty, and his punishment assessed at a fine of $50. After appeal taken, trial anew was had in the circuit court, where the accused was again found guilty and his fine fixed at $100. He has appealed.

1. Before the introduction of any evidence, defendant moved to quash the information "for the reason that it does not locate any building, nor where said gambling tables were kept." Appellant's contention is that the location of the "building" must appear on the face of the information. We had a similar question under review in the case of State v. Newman, 132 S. W. 753, where the indictment charged that the defendant "at the county of Butler, state of Missouri, on or about the 21st day of January, 1909, did then and there unlawfully set up and keep a common house of assignation." Defendant moved to quash because the location of the house was not set out and described with sufficient particularity. Our language in that case effectually disposes of the contention in this: "The general rule is that it is sufficient, in an indictment charging the commission of an offense created by statute, to follow the language of the statute; and this indictment fully complies with that requirement. In the case of State v. Raymond, 86 Mo. App. 537, an indictment, based on the same statute as that on which the indictment in the present case rests, charged that the defendant on a certain date, `at the county of Bates and state of Missouri, did then and there unlawfully keep and maintain a bawdyhouse,' etc., with no more particular description of the `bawdyhouse.' The court said: `It has been held in this state that it is sufficient that the indictment charges the offense to have been committed in the county where the prosecution is commenced.'" See, also, State v. Ramsauer, 140 Mo. App. 401, 124 S. W. 67.

Again, as we said in the case of State v. Seiberling, 143 Mo. App., loc. cit. 321, 127 S. W. 106, the same nicety is not required in drawing indictments in cases of minor offenses as is required in charging common-law felonies. State v. Fletcher, 18 Mo., loc. cit. 427; State v. Nelson, 19 Mo., loc. cit. 396. We are of the opinion that the charge was sufficiently definite and certain to inform the defendant of the offense he was called upon to meet.

2. Appellant contends that the information contains four separate and distinct charges: "That the defendant unlawfully permitted one crap table upon which dice are used, and one poker table upon which cards are used, to be set up, and used"; that the charge that the two tables have been set up contains two offenses; and the charge that the two tables have been used contains two offenses. At the close of the evidence, defendant moved that the state be required to elect whether it would prosecute the defendant for permitting a gaming device to be set up, or for permitting the gaming device to be used, which motion was denied. The statute (section 4753, R. S. 1909) provides: "Every person who shall permit any gaming table, bank or device to be set up or used for the purpose of gaming," etc. It was held in State v. Pittman, 76 Mo. 56, that, where a criminal statute uses disjunctive language in defining an offense, the indictment may be drawn in the conjunctive. Thus, where the statute provides a punishment to every person who shall "set up or keep a common bawdyhouse," a charge that defendant "did unlawfully set up and keep a common bawdyhouse" was sustained. The substitution of the word "and" for the word "or" was immaterial, said the court. State v. Bregard, 76 Mo. 322. In the case of State v. Cannon (Sup.) 134 S. W., loc. cit. 514, Kennish, P. J., said: "Complaint is made that the court erred in overruling defendant's motion to require the state to elect upon which of the several charges contained in each count of the information it would proceed to trial. Each count charged the setting up and keeping of one gaming table only, and the averment that the defendant enticed and permitted divers persons to bet and play thereon did not make the count double, and the motion to elect was properly overruled." In State v. Fletcher, 18 Mo. 425, the contention was made that the offense consists in permitting the gaming device "to be set up or used," and not in both setting up and using. In denying the soundness of this contention, the court said "* * * There is no objection to charging several different acts, either one of which is an offense under the statute which creates it, in one indictment, although the statute uses the disjunctive form in describing the offense."

The trial court in the only instruction given for the state withdrew from the jury the charge as to permitting a poker table to be set up and used and instructed alone as to the crap table. By no reasoning, therefore, can it be maintained that prejudicial error ensued by reason of...