State v. Jackson

• Decision Date: 17 May 1949
• Docket Number: No. 27577.,27577.
• Citation: 220 S.W.2d 779
• Parties: STATE v. JACKSON.
• Court: Missouri Court of Appeals

220 S.W.2d 779

STATE v. JACKSON.

No. 27577.

St. Louis Court of Appeals. Missouri.

May 17, 1949.

Motion for Rehearing or for Transfer to Supreme Court Denied June 17, 1949.

Appeal from St. Louis Court of Criminal Correction; Louis Comerford, Judge.

"Not to be reported in State Reports."

Robert Lee Jackson was convicted of selling lottery ticket and he appeals.

Reversed and remanded.

J. R. Weinbrenner, St. Louis, for appellant.

William C. Lochmoeller, Prosecuting Attorney, St. Louis, Jasper R. Vettori, Associate Prosecuting Attorney, St. Louis, for respondent.

WOLFE, Commissioner.

The appellant was tried and convicted in the St. Louis Court of Criminal Correction on a charge of selling a lottery ticket under Section 4705, R.S.Mo.1939 Mo.R.S.A. § 4705. He was fined $750 and after sentence prosecutes this appeal.

The information upon which defendant was tried charges: "That Robert Lee Jackson in the City of St. Louis, on the 31st day of May, 1946, did unlawfully aid and assist and otherwise concern himself in the sale of a lottery ticket or other device in the nature of a lottery to wit: policy."

A plea in bar was filed and the ground relied upon was that the defendant had been charged with the same act and convicted of the same offense in City Court No. 2 of St. Louis. After the plea in bar was overruled the defendant was tried and the state's case consisted of the testimony of the police officers who arrested the defendant.

Officer Griffin testified at considerable length on the method of operating a lottery known as "policy". He stated that participations in the lottery are sold by permitting the player to select two numbers and paying the seller the amount of money he wishes to play. Numbers are drawn and printed in columns on a "result sheet" and if the numbers selected by any player appear on the result sheet in certain positions he wins. There are several columns of numbers and different ways of playing each column and determining the winner and the amount won. Griffin testified that on May 31 at about 4:00 p. m., while he was on routine investigation with officer Geile, they went together into the Workingmen's Hotel and while in the lobby the defendant entered from one of the rooms. He had in his hand a black notebook and some policy "result drawings", which the police officers recognized as policy paraphernalia. They arrested Jackson who gave them the book that he had and told them that it was his policy book. He also told the police officer that the "class number" on the book was for a drawing that was to take place at 5:00 p. m. and that the result sheets represented the results of the noon drawings. He told the police that lie wrote "plays" for people in the hotel and people that he met on the street. He explained the nature of the different plays indicated by the numbers which were noted in the book and the purpose of the three columns of figures on the result sheet.

The first assignment of error goes to the overruling of the plea in bar. To sustain the plea the defendant put on evidence that he had previously been convicted under Section 1677 of Ordinance 41386, which provides a fine for any one convicted of assisting in establishing a lottery. Officer Griffin testified that he was the witness for the prosecution in the city court and that his testimony there related to the same acts and the same state of facts that he later testified to in the trial of this case.

A proceeding to punish under a city ordinance is said to be a civil action. It has long been held in Missouri that in cases where the acts charged violate both an ordinance and a state law prosecution under the city ordinance is not a bar to prosecution under the statutes of the state. Therefore, the court properly overruled the plea in bar. State v. Gustin, 152 Mo. 108, 53 S.W. 421; State v. Muir, 164 Mo. 610, 65 S.W. 285; City of Lebanon v. Gordon, 99 Mo.App. 277, 73 S.W. 222; City of Stanberry v. O'Neal, 166 Mo. App. 709, 150 S.W. 1104.

It is asserted by further assignment of error that defendant's demurrer should have been sustained in that the state failed to prove the corpus delicti. Jackson was charged with aiding and "otherwise concerning himself in the sale of a lottery ticket." There was sufficient proof that the game of chance called policy is in the nature of a lottery but the gravamen of the charge is the sale of a ticket."

The corpus delicti is the fact that the crime charged was committed and in this case it would be the sale of a lottery ticket. The state's witnesses never saw a sale made and knew of no sale that had been made. The prosecution rested its proof of the corpus delicti upon the statement made by the defendant.

In the very recent case of State v. Humphrey, Mo.Sup., 217 S.W.2d 551, 552, the defendant was charged with establishing a policy lottery as a business and vocation. When he was arrested he had recordings of bets with him, result sheets and other paraphernalia used in such lotteries. He told the arresting officers he was "in the policy racket"; that he got a percentage on bets; and that he took bets from other writers to the Harlem Club where they held their "meets". This evidence was held to be insufficient and the court stated: "`It is a settled rule of criminal procedure that testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that a crime was in fact committed. * * * Proof of a confession of a crime not made in open court, without independent proof of the corpus delicti, will not sustain a conviction.'" State v. Capotelli, 316 Mo. 256, 292 S.W. 42; State v. Craig, 328 Mo. 938, 43 S.W.2d 413; State v. Cooper, Mo. Sup., 214 S.W.2d 19.

Applying this rule to the case under consideration and...