State v. Miller

• Decision Date: 20 June 1905
• Citation: 89 S.W. 377,190 Mo. 449
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

89 S.W. 377

190 Mo. 449

STATE v. MILLER.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. LOTTERIES—INDICTMENT.

An indictment following the language of Rev. St. 1899, § 2219, making it a felony to aid or assist in making or establishing any lottery or a scheme in the nature of a lottery as a business in the state, is sufficient, though it does not charge in what manner or how the defendant aided or assisted in maintaining and establishing the lottery, nor what the lottery was.

2. INDICTMENT—FORMAL REQUISITES.

An indictment, otherwise good, which charges that the defendant knowingly, willfully, and feloniously committed the acts charged, was sufficient without the use of the word "unlawfully."

3. LOTTERIES—ESTABLISHMENT AS BUSINESS.

One who devoted his time to the business of selling lottery tickets, and who employed agents for that purpose and distributed winning lists and paid prizes, was guilty of assisting in establishing a lottery as an avocation or business, though the lottery drawings were not to occur in the state.

4. CRIMINAL LAW—TRIAL—INSTRUCTIONS.

Where one accused of establishing a lottery as a business or avocation himself testified that he sold tickets, and requested an instruction that if he only bought tickets and sold them on his own account he could not be convicted, and his counsel during the progress of the trial stated that the offense of which the defendant was guilty was selling tickets, he could not complain of an instruction which assumed that he sold lottery tickets.

5. SAME.

An instruction authorizing conviction of the accused if he committed certain acts was not erroneous for failure to use the word "feloniously."

6. SAME.

An instruction that the law presumes the defendant to be innocent, and this presumption continues till it has been overcome by evidence which establishes his guilt to the jury's satisfaction and beyond a reasonable doubt, is not erroneous for failure to use the word "reasonable" before the word "satisfaction."

7. SAME.

An instruction that, in determining the credibility and weight of a witness' testimony, "his relation to or feeling towards the defendant" may be taken into consideration, is sufficient on the question of the witness' bias, since it necessarily contemplates whether he was friendly or unfriendly to the defendant.

8. SAME.

An instruction in a criminal case that defendant was a competent witness in his own behalf, but the fact that he was testifying in his own behalf might be considered by the jury, was not erroneous for the use of the conjunction "but," instead of "and."

9. LOTTERIES—ADMISSIBILITY OF EVIDENCE.

In a prosecution for establishing a lottery as an avocation or business, certain tickets, sheets, and lists of drawings were admissible in evidence, where the evidence showed that the tickets were of the character of those received from the defendant, that the sheets which had been distributed to the various agents were counterparts of one exhibited at the defendant's place of business, and that the list of lottery drawings which was introduced in evidence was obtained at the defendant's cigar store; these facts sufficiently connecting them with the defendant.

10. SAME—VERDICT.

Where an indictment charged defendant with establishing a lottery as a business and avocation, a verdict omitting the words "as a business and avocation" was sufficient, where it found the defendant guilty as charged in the indictment.

11. WITNESSES—CROSS-EXAMINATION.

Where on direct examination one accused of establishing a lottery as a business and avocation testified that he was never in the employ of the Mexican Lottery Company and was never authorized to transact any business on its account, he was properly cross-examined to show that he had purchased and made a business of selling the tickets of the Mexican Lottery Company.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Louis T. Miller was convicted of crime, and appeals. Affirmed.

See 88 S. W. 607.

Rehearing denied.

Morton Jourdan, for appellant. H. S. Hadley, Atty. Gen., and Frank Blake, for the State.

GANTT, J.

This is an appeal from the judgment of the circuit court in the city of St. Louis. The defendant was indicted, along with John P. Collins and S. J. Tennant, on May 29, 1903, for aiding and assisting in making and establishing as a business and avocation in the city of St. Louis a certain lottery and scheme of drawing in the nature of a lottery, known as the "Mexican Lottery." There were three counts in the indictment, but the prosecuting attorney dismissed as to the first and third, and elected to proceed on the second, which is in the following words: "And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said John P. Collins, Louis T. Miller, and S. J. Tennant, on or about the fifth day of May, in the year one thousand nine hundred and three, at the city of St. Louis aforesaid and state aforesaid, did knowingly, willfully, and feloniously aid and assist in making and establishing as a business and avocation, in the city and state aforesaid, a certain lottery and scheme of drawing in the nature of a lottery, known as the `Mexican Lottery,' whereby a large sum of money, to wit, sixty thousand dollars, was thereafter to be disposed of by lot and chance (the particular method by which said disposition of said sum of money was to be made is to the jurors aforesaid unknown), contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The defendant was duly arraigned, a severance granted, and on the 18th day day of March, 1904, the defendant Miller was tried and convicted on said second count, and his punishment assessed at six months in the city jail. A motion for new trial was duly entered, heard, and overruled, and an appeal allowed to this court.

The testimony in the case was substantially as follows:

Herman Richter, on behalf of the state, testified: "On May 5, 1903, was engaged in business of selling lottery tickets; know the defendant Miller, who has a place of business at 411 Walnut street in St. Louis, Mo. I reported daily to defendant, Miller, who started me out on the first day I went to work for him with some Mexican Lottery tickets, saying: `See what you can do with them as to establishing trade. Go out and put tickets in places, and see if they could sell them and give them a percentage.' The tickets were of different prices, 25 cents, 50 cents, $1, $2, and $4. I took the tickets to different parts of the city, wherever we had customers to sell the tickets for us—to barber shops, saloons, and tobacco stores, where they were sold on a percentage, the person selling getting 15 per cent. on the dollar for all sales. I received $45 per month, and Mr. Miller, the defendant, always paid me my salary at 411 Walnut street twice each month. I had a particular route in North St. Louis, and sometimes I would dispose of $2,000 worth of tickets in one month. Any tickets I had left over I would take back to the office, and the money for the tickets sold would be handed to Mr. Miller, the defendant, or the clerk, Wm. Sheehy. If any man would win a prize, we would advertise it on a little slip of paper and distribute it among the people, so as to advertise the company. When a drawing was had, we would get a telegram showing the capital prize, and after that a list of the smaller prizes. In taking the tickets around to the customers, if a man had a winning ticket, I would cash it for him, and then I would turn the canceled ticket in as cash when I made my report to the office. I would see the defendant in that place nearly every day. It is a little cigar store in front, and there is a little room in the back where the tickets are kept. Defendant's name was on the window of this establishment at 411 Walnut street. I got my day's supply of tickets either from defendant or Mr. Sheehy. Defendant employed others in the same work I was engaged in; saw them around his place getting their tickets and being paid off. The capital prize of the Mexican Lottery is $60,000, and I think there were 80,000 tickets. I heard the drawing was taking place in Mexico." On cross-examination witness stated he had known, by common report, of the Mexican Lottery for 10 or 12 years; that it was an establishment chartered by the republic of Mexico as a government institution. "Never saw a drawing of the Mexican Lottery; do not know whether they had any drawings or not; only what I heard and what is stated on the tickets. The defendant got his printed matter, tickets, etc., from a man by the name of Buchroeder. The connection that defendant had with this concern was to sell tickets, the same as I did." On redirect examination witness identified a sheet, dated May 28, 1903, showing list of winning numbers similar to the sheets distributed by the defendant. Witness stated he had been convicted of frequenting bawdyhouses some four or five months previous.

Arthur Buchroeder testified on behalf of the state substantially as follows: "My father is a jeweler, and has a place of business at 507 Walnut street. I know the defendant and his place at 411 Walnut street. There was an office of the Mexican Lottery at 507 Walnut street. I am connected with the Mexican Lottery in the capacity of clerk. I do not know what connection the defendant had with the Mexican Lottery Company. I have had financial settlements with him of business transactions concerning the Mexican Lottery Company. Defendant came up to get some lottery tickets; came to my place. I presume the tickets came to me by express. I do not know. They were sent to various places by the company, I presume, and they would be sent to my place by wagon. Once a month I would get a consignment of tickets, from 10,000 to 18,000. Then they would be distributed —some to the defendant, who paid for them, and some at other places. If he would not sell...