State v. Jackson
| Decision Date | 31 January 1867 |
| Citation | 39 Mo. 420 |
| Parties | STATE OF MISSOURI, Defendant in Error, v. DANIEL JACKSON, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Cole Circuit Court.
The court gave the following instructions at the instance of the State, to which defendant objected:
1. If the jury believe from the evidence that the defendant played at the game commonly called pool, by means of a billiard table, and that at such game of pool so played money or property was bet, won or lost, such game so played would be in law a game of chance; and if such game was so played upon a billiard table, as charged in the indictment, such billiard table did thereby become in law a gambling device.
2. If the jury further believe from the evidence that the defendant, within twelve months prior to finding the indictment, did play at said game of pool for money or property, in Cole county, they will find him guilty, and assess his punishment at a fine of not less than ten nor more than twenty-five dollars.
3. A doubt to be considered by the jury must be a reasonable doubt, and not a mere possibility.
Defendant asked the following instructions:
1. If the jury believe from the evidence that the game of pool is a game of science played upon a billiard table, or pool table, then although they may believe from the evidence that defendant bet money on such game, within one year from the finding of this indictment, they will find the defendant not guilty, unless they further find from the evidence that the table on which such game of pool was played was then and there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property, as charged in the indictment.
2. Although the jury may believe from the evidence that this defendant did play at a game of pool, and did bet money thereat, they will find him not guilty, unless they further find that said game of pool is played by means of a gambling device, or gambling table, adapted, devised and designed for the purpose of playing a game of chance for money or property.
3. Although the jury may believe that the defendant did play at a game of pool, and did bet money thereon, yet they will find him not guilty, if they further believe from the evidence that the said game of pool is a game of science.
4. Although the jury may believe from the evidence that the defendant did play a game of pool and bet money thereon, they will find him not guilty, unless they further find that said game of pool is played upon a gambling table, bank or device, as stated in first instruction, or that said game of pool is a game of chance.
All of which were refused.
J. E. Belch, for plaintiff in error.
It is insisted on the part of the plaintiff in error that this case should be reversed, because the evidence of all the witnesses was that the play of pool is a play or game of science, and not of chance.
Gaming at common law is no offence , hence the offence intended to be charged must be strictly within the statutory prohibition.
This indictment is drawn under the 17th sec. of the 8th art. of R. C. of 1855, and charges the defendant of having bet on a gaming table, bank or device, prohibited by the 16th section of said article; not any one therein specifically enumerated, but a “kind,” &c., “adapted, devised and designed for the purpose of playing a game of chance.” A material averment is, that the bet should have been made on a gambling table or device, adapted, devised and designed for the purpose of playing any game of chance. The State not only failed to prove this material averment, but actually proved that the game was one of science, and the table was constructed to play the game of pool and billiards upon principles as purely scientific as geometry.
The court erred in giving the instructions asked on part of the State, and refusing to submit the question of chance to the jury as asked by the instructions of defendant--Glascock v. State, 10 Mo. 308; State v. Flack, 24 Mo. 378.
The game of pool played on a billiard table is...
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