State v. McCarthy

• Court: Kansas Supreme Court
• Writing for the Court: DAWSON, J.:
• Citation: State v. McCarthy, 124 Kan. 20, 257 P. 925 (Kan. 1927)
• Decision Date: 09 July 1927
• Docket Number: 26,640
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN MCCARTHY, Appellant

257 P. 925

124 Kan. 20

THE STATE OF KANSAS, Appellee, v. JOHN MCCARTHY, Appellant

No. 26,640

Supreme Court of Kansas

July 9, 1927

Decided July, 1927.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LOTTERIES--Indictment and Information--Sufficiency. In an appeal from a conviction and judgment of feloniously offering lottery tickets for sale, the rule applied that an information is sufficient against a motion to quash where it fairly apprises the defendant of the crime charged against him and is sufficiently specific so that the court can readily pronounce judgment on a plea or verdict of guilty.

2. SAME--Evidence--Sufficiency. Error assigned on the want of evidence to support the charge considered and not sustained.

3. INDICTMENT AND INFORMATION -- Averment as to Time -- Proof of Other Date. Rule applied that where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations.

4. LOTTERIES--Instructions. A requested instruction concerning the offense of bookmaking as defined in the crimes act (R. S. 21-1510), was irrelevant and properly refused.

Roy R. Hubbard, of Kansas City, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, Arthur J. Mellott, county attorney, and H. J. Emerson, deputy county attorney, for the appellee.

OPINION

DAWSON, J.:

The defendant was convicted of feloniously keeping lottery tickets for sale in violation of R. S. 21-1502.

It appears that in 1925, in Wyandotte county, defendant was engaged in selling, offering and keeping for sale various sorts of sealed lottery tickets, priced at 25 cents and upwards, which purported to give the purchasers a chance to win a prize of $ 25 or other sum up to $ 500 if certain results were achieved by various baseball teams in their computed weekly scores of games as printed in the sporting pages of the daily press. The tickets were sealed so that the purchaser could not tell on what baseball teams he was hazarding his money, and his own judgment of the merits of the teams had nothing to do with his chance of winning. The scheme, if indeed it actually did give the ticket holder a gambler's chance to win, was more complicated than a quadratic equation, but the court will not undertake to expound its intricacy.

Defendant hung about the business establishment of the complaining witness in Kansas City apparently seeking to ply his trade, and notwithstanding he was repeatedly ordered away he persisted in plying his unlawful business thereabout to the annoyance of the complaining witness, who eventually caused his arrest, and his conviction followed.

He appeals, contending first that the trial court erred in overruling his motion to quash the information because it did not sufficiently show what sort of lottery ticket defendant was offering for sale. It was characterized by the pleader as--

"A certain writing, token or device, consisting of a slip of paper with certain numbers written thereon and commonly known as a lottery ticket, intended to evidence the right of the holder to a chance to receive money as the result of a lottery drawing, commonly called a baseball pool, thereafter to be held."

The rule as to the sufficiency of an information is that if it fairly apprises the defendant of the crime charged against him and is definite enough so that the court will have no trouble in ascertaining the correct sentence to impose upon a verdict or plea of guilty ( State v. Hutzel, 108 Kan. 456, 195 P. 887), the information is good against a motion to quash. Within that rule, the trial court did not err.

It is next urged that the defendant was entitled to be discharged because there was no evidence, direct or circumstantial, to support the charge. That contention lacks merit. The testimony of the prosecuting witness, and that of the policeman who arrested defendant, and of a third witness who had bought a lottery ticket from him, and of a fourth witness who had seen defendant carrying around a cigar box filled with the sort of lottery...