State v. Jackson

• Decision Date: 09 May 1912
• Parties: STATE v. JACKSON.
• Court: Missouri Supreme Court

146 S.W. 1166

STATE v. JACKSON.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. INDICTMENT AND INFORMATION (§ 125)— DUPLICITY.

Under Rev. St. 1909, § 4750, making it a felony to set up and keep any gambling table or gambling device, the keeping of more than one table at the same time and place and as one transaction does not constitute separate felonies, and hence an indictment charging the keeping of a crap table and a poker table is not duplicitous.

2. CRIMINAL LAW (§ 678) — TRIAL—ELECTION BETWEEN ACTS.

On the trial of a person charged with keeping more than one gambling table, if it should develop from the evidence that they were not kept as one transaction at the same time and place, the state should be required to elect on the keeping of which table it would ask a conviction.

3. GAMING (§ 87)—CRIMINAL RESPONSIBILITY —INDICTMENT—REQUISITES AND SUFFICIENCY.

An indictment charging the keeping of more than one gambling table on which dice and cards were used is not insufficient for uncertainty because it does not allege whether dice was used on one table and cards on the other, or both used on either indiscriminately; this being a matter of evidence.

4. JURY (§ 55)—CRIMINAL LAW (§ 11661/2) —EXEMPTIONS — CHALLENGES — PREJUDICIAL ERROR.

Rev. St. 1909, § 7342, exempts from jury service all railway employés, requires the jury commissioners to omit from the list of jurors persons found to be exempt, and provides that the court shall excuse any juror whose voir dire examination discloses that his name should not have been placed on the list when challenged for cause by any party. Held, that the provision exempting railway employés was directory, and hence the overruling of a challenge by accused to such an employé, otherwise qualified as a juror, was not reversible error, where accused was not prejudiced thereby, especially where, although the examination disclosed that such juror was a railway employé when examined, it did not disclose that he was such employé when placed on the jury list.

5. GAMING (§ 97)—CRIMINAL RESPONSIBILITY —TRIAL—EVIDENCE.

A charge of setting up and keeping gambling devices and tables implying lapse of time so as to make it a continuing offense, any fact or circumstance connected with the place where the device was kept during such time tending to prove the charge, or concerning the conduct of accused in the management of the device or any other gambling device in the same room or place, and conducted as a part of the same scheme, is admissible in evidence.

6. CRIMINAL LAW (§ 881)—VERDICT—INSTRUCTIONS.

A person accused of crime is entitled to the concurrence of the 12 jurors upon one definite charge of crime, and hence an instruction on a trial for setting up and keeping one crap table and one poker table, under which a conviction could be had if part of the jury thought him guilty of keeping one table, and part the other, is improper, and in connection with a general verdict of guilty as charged is reversible error.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Ollie Jackson was convicted of crime, and he appeals. Reversed and remanded.

Thos. B. Harvey (Jno. A. Gernez and Thos. J. Rowe, of counsel), for appellant. The Attorney General and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

Appellant was indicted in the circuit court of the city of St. Louis, at the October term, 1910, for the felony of setting up and keeping gambling devices in violation of section 4750, Revised Statutes 1909. The indictment, so far as material, is as follows: "* * * And that the said Ollie Jackson and one Theodore Washington, on or about the first day of July, in the year of our Lord one thousand nine hundred and ten, at the city of St. Louis aforesaid, did unlawfully and feloniously set up and keep divers gaming tables and gambling devices, to wit, one crap table, commonly so called, and one poker table, commonly so called, upon which dice and cards were used, which said gaming tables and gambling devices were adapted, devised, and designed for the purpose of playing games of chance for money, property, and poker chips, and did then and there unlawfully and feloniously entice and permit divers persons, to wit, Richard Sydnor, William Ransom, Gus Watson, William Palmer, Lee Marion, Frank Slaughter, Mitchell Pearl, Thomas Shaw, Joseph Menears, Andrew Vaughn, and divers other persons to these grand jurors unknown, to bet and play at and upon and by means of said gambling tables and gambling devices, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." A severance was granted, and upon a separate trial the defendant was convicted and sentenced to the penitentiary for a term of two years. From the judgment and sentence he appealed to this court.

This is a companion case to the case of State v. Washington, 146 S. W. 1164, decided at the...