State v. Leaver

• Decision Date: 02 June 1913
• Parties: STATE OF MISSOURI, Respondent, v. JAMES LEAVER, WREN BUGG, and THOMAS CARTER, Appellants
• Court: Kansas Court of Appeals

157 S.W. 821

171 Mo.App. 371

STATE OF MISSOURI, Respondent, v. JAMES LEAVER, WREN BUGG, and THOMAS CARTER, Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

Reversed and remanded.

Don C Carter and N. T. Gentry for appellants.

E. C Anderson and George S. Starrett for respondent.

OPINION

JOHNSON, J.

--On information of the prosecuting attorney of Boone county James Leaver, Thomas S. Carter and Wren Bugg were tried for a violation of section 4753, Revised Statutes 1909. A nolle prosequi was entered as to Carter and the jury returned a verdict of guilty as to the remaining defendants, assessing a fine of one hundred and fifty dollars against Leaver and a fine of fifty dollars against Bugg. Motions for a new trial and in arrest of judgment were filed and overruled and both defendants appealed.

The information charged that "James Leaver, Thos. S. Carter and Wren Bugg on or about the 20th day of December, 1911, at the county of Boone, State of Missouri, did unlawfully permit a certain gaming device commonly called a pool table, designed and used for the purpose of playing games of chance for money and property, to be used for the purpose of gaming in a certain building there situate and under the control and in the possession of said James Leaver, Thos. S. Carter and Wren Bugg," etc.

Carter owned a building in the city of Sturgeon in which a pool hall was being conducted and also owned the pool tables, balls and cues and other personal property used in the business. Leaver had leased the building and contents from Carter and was the proprietor of the business. He was in other business which engrossed his attention during business hours and he employed Bugg to run the pool hall during his absence. The evidence of the State discloses that Bugg, while in full charge and control of the place, allowed certain patrons to play a game called "Kelly pool" for money stakes. This game is played on a pool table with numbered billiard balls and cues and a bottle containing very small balls numbered to correspond with the numbers on the billiard balls is used at the beginning of a game to assign to each player a particular ball to play. The player who first succeeds in pocketing his ball wins the game and the stakes. Leaver frequently spent his evenings at the pool hall and had knowledge that Kelly pool was being played on the tables for money, but neither he nor Bugg participated in the gambling nor received other remuneration than the usual fee charged for an ordinary pool game.

The offense prohibited by section 4753, Revised Statutes 1909, "is the permitting any gaming device to be used for the purpose of gaming in any house belonging to, occupied by, or under the possession, or control, by anyone . . . if the defendant knowingly permitted the gaming device, described in the indictment, to be used for gaming purposes in his house, then he has violated the statute." [State v. Dyson, 39 Mo.App. 297.]

It is immaterial that defendants did not gamble themselves. If they allowed the pool tables to be used by their customers in playing games of chance for money or property they violated the statute.

Counsel for defendants attack the information on the ground that in omitting any reference to the use of balls and cues and in treating a pool table as, of itself, a gaming device, the information fails to charge a statutory offense. It is argued that sections 4750, 4751, and 4753 are in pari material, must be construed together and that a bare pool table does not come within the vicious devices defined in section 4750. We agree with counsel that pool tables are harmless when innocently used; so are playing cards, but either may be used in gaming and it is such use the statutes are designed to suppress. Section 4752, which was enacted in 1909, makes it a misdemeanor "for any person to play for money at any billiard game, pool game, or any other game played upon a table and upon which balls and cues are used."

This statute has reference only to games played with balls and cues and obviously was not intended to restrict the scope of the offenses defined in section 4753. The term "any gaming table" used in the latter statute means any table that may be used for playing games of chance for money or property and the offense consists in using such table "for the purpose of gaming," the word gaming being employed as the synonym of gambling. [State v. Shotts, 143 Mo.App. 346, 128 S.W. 245.] If a pool table is used for gambling purposes it is a gaming table within the meaning of the statute, whether the games played upon it be Kelly pool, poker or craps, just as a deck of cards is a gambling device whether used in playing poker, pinocle, or bridge whist for money. In State v. Mathis, 206 Mo. 604, 105 S.W. 604, the defendant was convicted on a charge of "setting up and keeping divers gaming tables and gambling devices, to-wit, two poker tables . . . which were adatped, devised and designed for the purpose of playing games of chance for money or property." The court say in the opinion:

"Counsel for defendant lay much stress upon the fact that the game of poker does not require a table or device of a certain kind and specially adapted, devised and designed for the playing of...