State v. McKee

• Decision Date: 19 May 1908
• Citation: 110 S.W. 729,212 Mo. 138
• Parties: STATE v. McKEE.
• Court: Missouri Supreme Court

110 S.W. 729

212 Mo. 138

STATE v. McKEE.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. GAMING—KEEPING GAMING TABLES—INFORMATION.

An information by a prosecuting attorney in his official capacity against defendant, alleging that on a date specified defendant unlawfully and feloniously set up and kept a certain gaming table and gaming device, to wit, one crap table, commonly so called, on which dice were used, and which gaming table and gambling device were adapted for playing games of chance for money, and that defendant did then and there with felonious intent entice and permit C. and others to bet and play at, on, and by means of such gaming table and gambling device, contrary, etc., was sufficient in form to charge the offense of setting up and keeping gambling tables and permitting and enticing others to play thereon.

2. CRIMINAL LAW — APPEAL — MOTION FOR NEW TRIAL — ASSIGNMENTS OF ERROR.

The overruling of an application by accused for a continuance is not reviewable on appeal, where it was not assigned as error in accused's motion for a new trial.

3. SAME—INSTRUCTIONS.

An original information for maintaining gaming tables was filed against accused on June 28, 1907. This was quashed, and an amended information filed on June 30th, which was also quashed, and a second amended information filed on the same day, which was sustained, where-upon defendant was brought to trial. Held, that an instruction requiring the jury to find that the acts complained of in the information were committed three years next before the filing of the information, to wit, June 28, 1907, merely used such date to fix a time as a basis for charging the jury as to the statute of limitations, and did not indicate that defendant was tried on the information filed on June 28th.

4. INDICTMENT AND INFORMATION—FORM AND REQUISITES OF INFORMATION—ALLEGATION OF PRELIMINARY EXAMINATION.

The fact that accused had been accorded the right to a preliminary examination is not jurisdictional and need not be alleged in the information.

5. CRIMINAL LAW—OBJECTIONS—ABSENCE OF PRELIMINARY EXAMINATION.

That accused was denied the statutory right to a preliminary examination may be taken advantage of by calling the court's attention to the fact by an appropriate motion, and by offering proof establishing the fact.

6. SAME—APPEAL—PRESERVATION OF OBJECTIONS.

The mere filing of a motion to quash an information, or any other motion alleging the fact that defendant was not accorded a preliminary examination, is not sufficient to preserve such question for consideration on appeal.

7. SAME.

An allegation, in a motion to quash an information, or any other appropriate motion, of a failure to accord accused a preliminary examination, does not prove itself; but it is incumbent on accused to establish the allegation by competent evidence, and, if the court refuses to hear proof, to offer the same, and save his exceptions to the court's rulings.

8. SAME—APPEAL—OBJECTIONS—MOTIONS FOR NEW TRIAL.

Where accused's motion for a new trial failed to make any complaint of the court's action in overruling a motion to quash the information because accused was not accorded a preliminary examination, whether he was accorded a preliminary examination was not properly preserved, and the Supreme Court therefore could not indulge the presumption that he was not.

9. GAMING—GAMING TABLES—EVIDENCE.

Evidence held to sustain a conviction for setting up and keeping gaming tables and permitting and enticing others to play thereon.

Appeal from Circuit Court, Cole County; W. H. Martin, Judge.

John E. McKee was convicted of setting up and keeping gambling tables and permitting and enticing others to play thereon, and he appeals. Affirmed.

This cause is in this court by appeal on the part of the defendant from a judgment of conviction in the Cole county circuit court for setting up and keeping gambling tables, and permitting and enticing others to play thereon. The record in this cause discloses that on the 28th of June, 1907, the prosecuting attorney of Cole county filed in the circuit court of said county an information charging the defendant with setting up and keeping a certain gaming table and gambling device, and that he did then and there feloniously permit and entice divers persons to play at and upon and by means of said gambling device. To this information there was filed a motion to quash, which said motion was by the court sustained, and leave was granted the state to file an amended information. Afterwards, on the 30th day of July, 1907 the prosecuting attorney filed an amended information predicated upon the same state of facts as the first one. To this information the defendant interposed a motion to quash, which motion was by the court sustained, and the state given leave to file a second amended information, and afterwards, to wit, on the 30th day of July, 1907, the prosecuting attorney filed his second amended information, which was duly verified, and, omitting formal parts, was as follows: "Now, come J. G. Slate, prosecuting attorney of Cole county, state of Missouri, and in his official capacity and on his official oath informs the court that at the county of Cole and state of Missouri aforesaid, on or about the 7th day of May, 1907, and on divers other days prior thereto, J. E. McKee did then and there unlawfully and feloniously set up and keep a certain gaming table and gambling device, to wit, one crap table, commonly so called, upon which table dice were used, and which gaming table and gambling device were adapted, devised, and designed for the purpose of playing games of chance for money and property thereon, and he, the said J. E. McKee, did then and there feloniously induce, entice, and permit D. E. McClure, Hal. Englebrecht, and other persons, whose names are to this prosecuting attorney unknown, to bet and play at and upon and by means of said gaming table and gambling device, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state."

To this information there was also filed by the defendant a motion to quash, which was subsequently taken up by the court and overruled. The defendant then presented his application for a continuance, which was by the court overruled, whereupon the defendant was duly arraigned, entered his plea of not guilty, and put upon his trial before a jury. The evidence upon the part of the state which was developed at the trial tended to prove that J. W. Scott, sheriff of Cole county, in company with J. M. Jobe and W. H. Leslie, visited a gambling room on High street in Jefferson City, about 9 o'clock on the night of May 7, 1907. In order to gain admittance to said room, the sheriff was compelled to go up a back stairway, into the building, and through one room, around into a second room. In said room, they found the defendant, McClure, and Englebrecht, and several others. They also found a table, which was seven or eight feet long and between four and five feet wide, and a little higher than an ordinary table. This table was covered with a green covering and had a molding around the edge of the table two or three inches high. The cloth came up over the molding and around the end of the table. On said table were a number of dice and a little box, which was about four or five inches wide, which box contained the money. Four hundred dollars in silver was found on the table and in the box. That in the box was locked up. All the money was of the denomination of silver dollars. At the time the officers made this raid, the defendant was sitting on a high stool beside the table, about the middle of the table, and the money lay right in front of him, stacked up close to molding of the table. The defendant had charge of the money, and one of the other men, McClure, was pitching the dice. Englebrecht had a little stick, about twelve or thirteen inches long, and was raking in the dice as they were pitched out upon the table. When the sheriff walked up to the defendant and told the defendant his business, the defendant said: "Wait a few minutes until this game is over." After waiting a little while, the defendant got his money together, and the game wound up. Before entering said room, state's witness Jobe watched the game through an opening in the door. He saw the defendant at the head of the table, and money stacked up on the table around him. He could see the dice roll out, and somebody bring them back to the defendant, when the dice were rolled out again. The defendant had control of the game, and also had the money under his hand. The game played was a crap game, commonly so called, and was played for money on said table with dice. State's witness Brown testified that he was in said room before the officers came in and saw the crap game going on; McClure taking part in said game, and the defendant standing at the side...