State v. Jackson

• Court: Missouri Supreme Court
• Writing for the Court: KENNISH, J.
• Citation: State v. Jackson, 146 S.W. 1166, 242 Mo. 410 (Mo. 1912)
• Decision Date: 09 May 1912
• Parties: THE STATE v. OLLIE JACKSON, Appellant

146 S.W. 1166

242 Mo. 410

THE STATE v. OLLIE JACKSON, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Reversed and remanded.

John A Gernez and Thos. J. Rowe, Jr., for appellant.

(1) The indictment should have been quashed as uncertain, vague and indefinite and because of duplicity in charging two separate and distinct offenses. State v. Lee, 228 Mo. 499; State v. Chauvin, 231 Mo. 40; State v Carragin, 210 Mo. 270; State v. Huffman, 136 Mo. 58; State v. Clevenger, 20 Mo.App. 628; State v. Bach, 25 Mo.App. 554; State v. Smith, 31 Me. 386; State v. Fidment, 35 Iowa 541; State v. Burke, 151 Mo. 136. (2) Challenge to jurors for cause should have been sustained, as they are disqualified by statute. R. S. 1909, secs. 7341, 7342; State v. Wellser, 117 Mo. 577; Williamson v. Transit Co., 202 Mo. 365; Theobald v. Transit Co., 191 Mo. 418. (3) The court erred in admitting incompetent and irrelevant testimony; in admitting testimony that was hearsay; conclusions of witnesses, and merely matters of opinion. It was error to permit the State to impeach their own witness, Wm. Ransom. State v. Shapiro, 216 Mo. 359; Joyce v. Transit Co., 111 Mo.App. 565; Caldwell v. Bank, 100 Mo.App. 23; Hamilton v. Crowe, 175 Mo. 634. It was error for the court to pass upon the credibility of witness Ransom. State v. McKenzie, 177 Mo. 699; State v. Nolle, 96 Mo.App. 524; Briscoe v. Railroad, 118 Mo.App. 688; Dalton v. Poplar Bluff, 173 Mo. 39; Hugunin v. Hinds, 97 Mo.App. 346; Chenie v. Railroad, 100 Mo.App. 576. The court erred in permitting testimony as to the character and general reputation of the Modern Horse Shoe Club. Underhill, Crim. Evid., sec. 475; Wharton, Crim. Evid., sec. 260; State v. Mosby, 53 Mo.App. 571. (4) The verdict is indefinite and uncertain and consequently void. State v. Burke, 151 Mo. 146; State v. Pierce, 136 Mo. 34; State v. Rowe, 142 Mo. 442; 3 Graham & Waterman, New Trials, p. 1378; State v. DeWitt, 186 Mo. 67; State v. Cronin, 189 Mo. 671; State v. McGee, 181 Mo. 312; State v. Modlin, 197 Mo. 376; State v. Jones, 114 Mo.App. 343; State v. Grossmann, 214 Mo. 233; State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401; State v. Hudson, 137 Mo. 618.

Thos. B. Harvey also for appellant.

(1) The indictment is indefinite and uncertain. It charges that the appellant did set up and keep "one crap table, commonly so-called, and one poker table, commonly so-called, upon which dice and cards were used," etc. The most natural construction of this language is that both dice and cards were used in playing the game of chance for which the crap table was devised, and also in playing the game of chance for which the poker table was devised. Yet, when it came to a trial of the charge, the State's expert witnesses testified that only dice were used on the crap table, and only cards on the poker table. Therefore, the evidence did not sustain the charge, and the appellant's demurrer should have been sustained. Should it be held that the effect of the language is to charge that dice were used on one table and cards on the other, then can it possibly be claimed that the appellant was advised by the indictment on which of the two gaming tables dice are used, and on which cards are used? Was there ever a clearer violation of the constitutional guaranty that the defendant shall be informed of the "nature and cause of the accusation;" and can it be seriously contended that this indictment does not do flagrant violence to the fundamental rule of criminal pleading that in all prosecutions for felonies, everything constituting the offense must be pleaded with certainty and clearness, and nothing left to be implied? From the infancy of this court this cardinal rule has been recognized and enforced. State v. Hardwick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Rector, 126 Mo. 328; State v. Evans, 128 Mo. 406. And the cases of State v. Derossett, 19 Mo. 383, and State v. Reakey, 62 Mo. 40, announcing that, notwithstanding the Statute of Jeofails, a clear, substantive charge is as necessary now as it ever was, have been consistently followed by this court. (2) The indictment is duplicitous -- it charges two distinct felonies in one count. A timely motion to quash was interposed, both on the ground of uncertainty and because of duplicity, was overruled and exception duly saved. Each gambling table constituted a separate felony. State v. Montgomery, 109 Mo. 645; State v. Foncher, 71 Mo. 460; State v. Burke, 151 Mo. 139. If an indictment charges more than one felony in a single count, a motion to quash should be sustained. State v. Fox, 148 Mo. 524; 22 Cyc. 376A; State v. Carragin, 210 Mo. 351.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The information is valid, sufficient and charges the offense in the language of the statute. Sec. 4750, R. S. 1909. The prohibition contained in the statute includes the setting up and keeping of any kind of gambling device, adapted, designed and devised for the purpose of playing any game of chance for money or property. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; State v. Lee, 228 Mo. 480; State v. Hall, 228 Mo. 456; State v. Lockett, 188 Mo. 418; State v. Cannon, 232 Mo. 205. (2) The indictment is not duplicitous. State v Mathis, 201 Mo. 604; State v. Rosenblatt, 185 Mo. 114; State v. Miller, 190 Mo. 449; State v. Cronin, 189 Mo. 663; State v. Lockett, 188 Mo. 415; State v. Hall, 228 Mo. 456. (3) Appellant alleges in his motion to quash that the appellant was not given a preliminary examination, and that the grand jury that returned the indictment herein, was composed of persons of the Caucasian race; that appellant is of African descent, a citizen of Missouri and of the United States; that the indictment was returned in the circuit court of the city of St. Louis, and that about ten per cent of the population of the city of St. Louis are negroes and many of them qualified in law by their intelligence and standing in the community, to perform grand jury duties, and the fact that persons of the Caucasian race composed said grand jury was not the result of inadvertence and accident, but was done purposely and intentionally. The summoning and impaneling of jurors are directory only. State v. Jennings, 98 Mo. 493; State v. Mathews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. Pitts, 58 Mo. 556. This record shows that the list of grand jurymen was selected in the usual way. State v. Jackson, 167 Mo. 291; secs. 7341, 7342, R. S. 1909. Section 5068, Revised Statutes 1909, provides that no challenge to the array of grand jurors, or to any person summoned as a grand juror except those causes provided for in section 5067. This section has been construed by this court to the effect that the only disqualifications that can be urged are those enumerated in this section. State v. Crane, 202 Mo. 54. In State v. Claybaugh, 220 Mo. 15, it was held that neither the Constitution of Missouri nor of the United States undertook to designate what shall be the qualifications of either grand or petit jurors, and that the statute in this State makes full provisions as to the qualifications of both grand and petit jurors. The qualifications of a grand juror are purely statutory, and that statute merely directory. State v. Claybaugh, 220 Mo. 21. The record shows that no grand juror was excluded because he was a negro, or for any other reason. The grand jury was regularly impaneled, sworn and was a legal grand jury. State v. Glasscock, 232 Mo. 278. (4) Appellant complains of the action of the court in overruling the challenge of the defendant to jurors, because they were in the employment of a railroad company, said objection being based upon section 7342, Revised Statutes 1909. This section enumerates persons who are exempt from service of jury duty, and among the exemptions are those "who are in the employ of any railroad company." Appellant misconstrues this section because the exemption in said section is personal to the juror, as the section provides, "the name of no person shall be taken down who shall, when called on by said commissioner, to establish to the satisfaction of such commissioner, by competent proof, and upon diligent inquiry made by said officer, a legal exemption from jury duty," etc. Williamson v. Transit Co., 202 Mo. 345; Blyston v. Railroad, 132 S.W. 1175. The statute exempting persons from jury service is merely directory. Moreover, no complaint is made as to the incompetency of these jurors. Furthermore, appellant did not point out the statutory exemptions. Thompson & Merriam on Juries, sec. 34, p. 31. The constitutionality of such statute has been doubted. (5) Challenges of a grand jury, or of its members, are of two kinds, to the array and to the polls. The former is for some imperfection in the constitution of the panel. The latter is for some disqualification of a juror. Sections 5067 and 5068, Revised Statutes 1909, comprise the provisions of challenge of the statute. No objection was made to any member of the panel before the jury was sworn. Objections must be made at the time before this court will consider them. State v. Bleakley, 18 Mo. 431; State v. Sartino, 216 Mo. 408; State v. Glasscock, 232 Mo. 278. Appellant complains that the verdict is not certain or definite, but on the other hand it is indefinite and uncertain, and consequently void. While it may not be in the best form, yet the jury found the defendant guilty of setting up and keeping a gambling device as charged in the indictment. In other words, they took the pains to put in the verdict that for which they were trying the defendant. The words "of setting up and keeping a gambling...