State v. Miller
| Decision Date | 23 May 1911 |
| Citation | 234 Mo. 588,137 S.W. 887 |
| Parties | STATE v. MILLER. |
| Court | Missouri Supreme Court |
3. GAMING (§ 98)—EVIDENCE—SUFFICIENCY. Evidence held insufficient to sustain a conviction of keeping a gaming table.
4. WITNESSES (§ 256)—CROSS-EXAMINATION —CRIMINAL LAW.
Accused is entitled to inspect and use in cross-examination, a memorandum used by the prosecuting attorney to refresh a witness' memory.
5. WITNESSES (§ 271)—CROSS-EXAMINATION—CRIMINAL LAW.
On cross-examination of a state's witness whose memory is refreshed by a memorandum, accused can ask whether witness testified from the memorandum or memory.
6. CRIMINAL LAW (§ 721)—IMPROPER ARGUMENT—COMMENTS ON FAILURE TO TESTIFY.
In a trial for keeping a gaming table, it was error for the prosecuting attorney to comment on accused's failure to testify what he was doing in the place or whether he had visible means of support.
7. WITNESSES (§ 79) — EXAMINATION — PRELIMINARY QUESTIONS.
An adversary is entitled to ask a witness preliminary questions to determine his competency, but with a few exceptions, not to determine in advance the competency of the testimony about to be given.
Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.
Moses Miller was convicted of keeping a gaming table, and he appeals. Reversed and remanded.
R. M. Sheppard and Clay & Davis, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.
At the April term, 1910, of the circuit court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming table and gambling device, commonly called a crap table, sentenced to imprisonment in the penitentiary for a term of two years, and appealed to this court. The prosecution was based on section 4750, Revised Statutes of 1909. The facts are fully stated in the opinion.
1. Appellant first assigns as error the insufficiency of the evidence to sustain the verdict and the refusal of the court to give an instruction in the nature of a demurrer to the evidence. This contention calls for a review of the testimony upon which the jury found the defendant guilty. That gambling was carried on openly and in flagrant violation of the law, at the time and place charged in the indictment and mentioned in the evidence, was clearly shown, and, aside from the criminal agency of the defendant, every essential element of the offense charged was proven by undisputed evidence. The question that now demands our serious consideration is this: Was the testimony sufficient to warrant the jury in finding that the defendant set up and kept the gaming table, upon which the gambling was conducted as testified to by the witnesses?
It is provided by section 4761, Revised Statutes of 1909, that: "Every person appearing or acting as master or mistress, or having the care, use or management, for the time, of any prohibited gaming table, bank or device, shall be deemed a keeper thereof; and every person who shall appear or act as master or mistress, or having the care, use or management of any house or building in which any gaming table, bank or device is set up or kept, or of any gaming house, brothel or bawdy house, shall be deemed the keeper thereof." Did the testimony for the state bring the defendant within the charge in the indictment of setting up and keeping a gaming table, as defined in the statute upon which the prosecution was based, construed in connection with the foregoing section?
Four witnesses only testified on behalf of the state, namely, David Joseph, Frank Holburt, Guy Humes, and W. C. Porter. Porter was a deputy sheriff, and his testimony was limited to proof of the inability of the officers to obtain service on another witness for the state whose name was indorsed on the indictment. So the determination of the question in hand depends on the testimony of the three witnesses first named. Witness Humes was mayor of the city of Joplin, and his testimony did not relate directly to the time referred to in the indictment and by the other witnesses. He testified that about the 1st of June, 1909, in company with members of the police force, he went to the place in which gambling had been carried on in March or April preceding, as testified to by Joseph and Holburt, for the purpose of making a raid; that they went into the saloon over which the gambling room was located and demanded to go upstairs; that the defendant, who was in the saloon at the time, got the keys at the bar and took the mayor upstairs and into the gambling room; that they found the room furnished and fitted up with gambling tables and devices, but with no person therein. There was ice water in the water tank, and the spittoons had the appearance of having been lately used. The mayor said to the defendant, "You have been gambling up here," whereupon the latter laughed, but made no reply.
This testimony was objected to by the defendant and its admission is now assigned as error. We think it was properly admitted upon the principle that the conduct and admissions of the accused, after the commission of the crime and tending to prove the charge, are always competent. It was at least a circumstance that was proper for the consideration of the jury. But when that is said it must be admitted that the testimony of this witness has very little probative force as tending to prove that the defendant, two months before, set up and kept a gaming table as charged in the indictment.
The testimony of the witness Holburt very satisfactorily proved every element of the offense except that it in no manner connected the defendant with the setting up or keeping of the crap table on which the game was being played. He saw the defendant in the room, but did not see him taking part in the management of the table, or acting differently from others who were then in the room. Therefore, so far as it was necessary to connect the defendant with the setting up and keeping of the gaming table that was shown to have been operated, the case stands practically on the testimony of the witness Joseph.
Leaving out of consideration the...
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