State v. Lee

• Decision Date: 26 May 1910
• Citation: 228 Mo. 480,128 S.W. 987
• Parties: STATE v. LEE.
• Court: Missouri Supreme Court

128 S.W. 987

228 Mo. 480

STATE v. LEE.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. CRIMINAL LAW (§ 1167)—APPEAL—HARMLESS ERROR.

Where the case was dismissed as to the first count of the indictment and accused was convicted on the second count, he cannot complain of any insufficiency in the first count on appeal.

2. GAMING (§ 90)—PROSECUTIONS—INDICTMENT—SUFFICIENCY.

Rev. St. 1899, § 2194, as amended by Laws 1901, p. 130 (Ann. St. 1906, p. 1404), makes one who shall set up or keep any table or gaming device or table for the purpose of playing any game of chance for money or property, and shall induce, entice, or permit any person to bet or play at or upon such table or device, guilty of a felony. The indictment alleged that accused on a certain date and other days prior thereto unlawfully set up and kept a gambling device commonly called a "crap table," the same being a gambling device designed for the purpose of playing games of chance for money and property, and unlawfully induced, enticed, and permitted certain persons to bet and play at and upon a game played on and by means of such gambling device. Held, that the indictment was not defective for not containing the words "upon which dice were used."

3. INDICTMENT AND INFORMATION (§ 176) — ISSUES AND VARIANCE—TIME.

The state need not prove the commission of an offense on the exact date alleged, but may show that it was committed on any date before the indictment was filed and within the statute of limitations, so that, in a prosecution for keeping a gaming table, an indictment alleging accused kept the table on December 20th and on divers other days and times prior to, and between that day and the day of the filing of the indictment, was not objectionable on the ground that it did not advise accused of the charge.

4. CRIMINAL LAW (§ 370)—EVIDENCE—OTHER OFFENSES SHOWING KNOWLEDGE.

Where the indictment alleged that accused set up and kept a gaming table on December 20, 1907, and on divers other days and times prior to that day, evidence was admissible for the state that the same crap tables had been maintained in July and November prior thereto, while accused, the proprietor of the place, had control of the premises, at which time he was warned by the police to stop the game, though he was not personally present in the gaming room at that time, for the purpose of proving the maintenance of the table on December 20th, accused's knowledge thereof, and that it was maintained under his consent and control.

5. WITNESSES (§ 280)—EXAMINATION—CROSS-EXAMINATION.

In a prosecution for gaming, where a state's witness had stated on cross-examination that he had received money from the police office to play the gaming tables in order to detect the crap game, a further question whether he had not received money for being a "snitch" was properly excluded.

6. GAMING (§ 97)—PROSECUTIONS—ADMISSION OF EVIDENCE.

In a prosecution for keeping a gaming table on December 20, 1907, evidence that on May 10, 1906, accused had a telephone put in his premises, which was removed on November 17, 1906, was too remote to have any probative force, and should have been excluded.

7. INDICTMENT AND INFORMATION (§ 132)— ELECTION OF COUNTS.

Where the state entered a nolle pros. as to the first of two counts of the indictment, a contention of error in failing to require the state to elect is untenable.

8. CRIMINAL LAW (§ 564)—VENUE—PROOF.

Venue is always a question of fact, which may be proved by circumstantial evidence, like any other fact.

9. CRIMINAL LAW (§ 564)—SUFFICIENCY OF EVIDENCE—VENUE.

In a prosecution for keeping and operating a gaming device, evidence held to justify a finding that the offense was committed in the city of St. Louis.

10. GAMING (§ 85)—INDICTMENT—NAMES OF PERSONS PARTICIPATING.

If the grand jurors could have learned the names of persons who were accused's instruments in the commission of the crime, so as to describe them by name, a conviction will not be sustained if they lay their names as unknown, but in a prosecution for keeping a gaming device, where the evidence showed that there were 69 men and women in the room where the gambling device was kept on the night of the offense alleged, and the names of the witnesses who testified before the grand jury were indorsed upon the indictment, and it did not appear from the record whether the names of the persons in the room were learned or known when the indictment was found, accused cannot complain that the indictment did not allege the names of the persons arrested in the room on the night the offense was alleged to have been committed.

11. WITNESSES (§ 297)—EXAMINATION—SELF-INCRIMINATION.

Persons who gamble on a gaming device maintained by accused could refuse to testify in a prosecution for maintaining such device.

12. GAMING (§ 98)—PROSECUTION—SUFFICIENCY OF EVIDENCE.

In a prosecution for maintaining a gaming device, evidence held to show that a crap game was being played on the table when the house was raided, and that bets were made, and accused received a percentage from the winners.

13. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where the evidence in a prosecution for keeping a gaming device showed that the game was in operation when one employed by the police entered the place to start a game with money furnished him, and accused was then present and permitted the game to be played, and was taking his percentage of the earnings, the offense was complete so that accused cannot complain of the admission of testimony of such police employé as to what he saw while he was in the gaming room.

14. CRIMINAL LAW (§ 59)—"ACCOMPLICE"— WHO ARE.

An "accomplice" is one who knowingly and voluntarily, with a common intent with the the principal offender, unites with him to commit the crime, and one who was furnished money by the police to play at a crap game in order to procure evidence for a prosecution was not an accomplice of one prosecuted for maintaining the gaming table.

15. CRIMINAL LAW (§ 814)—INSTRUCTIONS— APPLICATION TO CASE—STATEMENT BY ACCUSED.

Accused in a prosecution for gaming could not complain of the giving of the usual instruction as to statements made by accused, if any, after the commission of the offense, on the ground that no such statements were made; a witness having testified that he thought he had a conversation with accused after the alleged offense regarding the subject-matter.

16. GAMING (§ 103)—PROSECUTION—VERDICT —SUFFICIENCY.

A verdict in a prosecution for gaming finding defendant guilty of setting up gambling devices as charged in the indictment, and assessing his punishment, was general and equivalent to a finding that he was guilty as charged in the indictment, not being limited by the words "of setting up gambling devices," and was sufficient.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

William Lee was convicted of keeping and operating gambling devices, and he appeals. Affirmed.

C. Orrick Bishop, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

GANTT, P. J.

On April 29, 1908, the grand jury for the city of St. Louis returned an indictment in two counts against the defendant. In the first count he is charged with having set up and kept gambling devices, to wit, one poker table and one crap table, on December 20, 1907, at Nos. 410, 411, and 412 North Levee street in the city of St. Louis, and the second count was in these words: "And the grand jurors aforesaid upon their oath further present that William Lee and Sam Favors on the twentieth day of December, one thousand nine hundred and seven, and on divers other days and times prior to and between that day and the day of the filing of this indictment, at the city of St. Louis and State of Missouri, did then and there willfully, unlawfully, and feloniously set up and keep a certain table and gambling device commonly called a crap table, the same being then and on said other days and times there a gambling device, devised and designed for the purpose of playing games of chance for money and property; and did then and on said other days and times there unlawfully and feloniously induce, entice, and permit certain persons, whose names are to these jurors unknown, to bet and play at and upon a game played on and by means of such gambling devise; against the peace and dignity of the state." The indictment was regularly assigned to division No. 12 of the circuit court for the trial of criminal cases and a severance was granted to the defendant, who filed his demurrer to the indictment, which was overruled. At the December term, 1908, the defendant was put upon his trial, which resulted in his conviction and his punishment assessed at two years in the penitentiary. He filed his motions for a new trial and in arrest which were heard and overruled, and he was sentenced according to the verdict. From that sentence he has appealed to this court. At the close of the testimony on behalf of the state, the state entered a nolle prosequi as to the first count of the indictment, and hence that count is not before us for consideration.

The evidence tended to prove that the defendant Lee was in charge of the buildings known as Nos. 410, 411, and 412 North Levee, in the city of St. Louis, and he had been in charge of the same for something like three years prior to December 20, 1907. He used No. 410 as a barber shop, 411 as a restaurant and dance hall, and the rear portion of 411 and 412 as places for playing craps, at which place large numbers of negroes would congregate and engage in that game. It appears in the testimony that this same place had been raided by the police of the city in June, July, and November prior to the date of the arrest of the defendant on December 20, 1907. On the night of December 20, 1907, the defendant was in the rear of No. 411 North Levee in charge of a pool table on which a game of craps...