State v. Patton

• Decision Date: 17 February 1914
• Citation: 164 S.W. 223,255 Mo. 245
• Parties: STATE v. PATTON.
• Court: Missouri Supreme Court

164 S.W. 223

255 Mo. 245

STATE v. PATTON.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. WITNESSES (§ 256)—EXAMINATION—USE OF MEMORANDUM TO REFRESH MEMORY.

Where written memoranda is used to refresh the memory of a witness, the adverse party is entitled to see the data used in order that he may cross-examine the witness.

2. CRIMINAL LAW (§ 1064)—APPEAL—PRESENTATION OF GROUNDS OF REVIEW—NEW TRIAL.

Where the memory of a witness was refreshed by means of the grand jury notes of his testimony, the question of the impropriety of the prosecution's refusal to allow the defense to examine the notes cannot be considered on appeal, where not presented in the motion for new trial.

3. WITNESSES (§ 255)—EXAMINATION—REFRESHING MEMORY.

Where a witness' recollection is hazy, his memory may be refreshed by referring to writings and other memoranda made by the witness or known by him to be correct, but written evidence not known by him to be correct, and which he did not participate in making, cannot be so used in evidence.

4. WITNESSES (§§ 255, 257)—EXAMINATION— REFRESHING MEMORY.

Where a witness cannot remember the occurrences which his testimony is sought to elucidate or desires to evade, the prosecution may use notes of his testimony given before the grand jury, but such notes, not having been made by the witness, cannot be introduced in evidence, as where documents known to be correct are used to refresh the memory of a witness, such notes being hearsay, and, if the witness denies his statements made before the grand jury, the state is concluded.

5. WITNESSES (§ 321)—EXAMINATION — IMPEACHMENT.

A party cannot impeach his own witness.

6. CRIMINAL LAW (§ 662)—TRIAL—CONFRONTATION.

Under Const. art. 2, § 22, guaranteeing an accused the right to meet the witnesses against him face to face, evidence of notes of the testimony of a witness given before the grand jury cannot be admitted.

7. CRIMINAL LAW (§§ 419, 420)—EVIDENCE— HEARSAY.

In a prosecution for maintaining a gambling device known as a crap table, testimony that the "boys" who frequented the place called it accused's place was inadmissible as hearsay.

8. GAMING (§ 98)—PROSECUTION—EVIDENCE —SUFFICIENCY.

In a prosecution for keeping a gambling device known as a crap table, evidence held insufficient to support a conviction.

9. CRIMINAL LAW (§§ 763, 764)—TRIAL— INSTRUCTIONS—PROVINCE OF JURY.

Under Rev. St. 1909, § 4761, providing that every person acting as master of any prohibited gaming table or device shall be deemed the keeper thereof, an instruction, in a prosecution for keeping a gambling device known as a crap table, that proof of one or more acts tending to show that accused was the keeper of the table is not sufficient to authorize a conviction, unless the jury believe beyond a reasonable doubt from all of the testimony that he was the keeper, is properly refused, being an invasion of the province of the jury, who are entitled to determine whether, from the circumstances, accused appears to have been the keeper of the device.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Owen Patton was convicted of keeping a gambling device, and he appeals. Reversed and remanded.

Defendant was convicted in the circuit court of Callaway county upon an indictment charging him with the offense of feloniously keeping a gambling device, consisting, as it is averred, of a crap table upon which dice were used, and which table and dice constituted a device adapted for the playing of the game commonly called "craps." The trial of the defendant resulted in his conviction and the fixing of his punishment at imprisonment in the county jail for a term of one year. After the usual motions for a new trial and in arrest, defendant has appealed and is now here urging reversal.

The facts, in the view we take of the case, are not of very much pertinence, but, in brief, they tended to show that some time prior to the 5th day of February, 1912, upon which date the indictment lays the offense, defendant and one Rogers were partners in the secondhand furniture business at Fulton, Mo. They used for their business, in addition to their store room, an old building containing two rooms, as a warehouse for the storing of such furniture as they were unable to get into their store. This old building had formerly been used as a paintshop by said Rogers. In the back part of this paintshop was a room which could be entered from the rear, or from an alley adjoining it, or by going through the paintshop. On divers days about the 5th of February, 1912, the testimony shows that there was in this rear room of the paintshop an old table, covered with cloth, which some of the witnesses spoke of as an old billiard table. It is not definitely stated, however, that it was an old dismantled billiard table; merely that it had the appearance of such. There was a pool hall in the vicinity. The testimony shows that defendant Patton, on three or more occasions about the date mentioned, was in this room, sitting by this table, and engaged with the witnesses who testified in the case, and with other persons, in the playing of craps with dice upon the table in question. The testimony shows that defendant himself played the game of craps and made bets thereon, and that he rolled the dice, as did the others who were seated about the table and who were engaged in the several games. One witness says that he "supposed" that defendant was banking the game. Another one verified the statement made in the witness' testimony before the grand jury, which was exhibited to the witness, that defendant was banking the game. Aside from the fact that the room in question, from its location and situation as a part of the warehouse, was in the possession of the defendant and his partner Rogers, and that the table and the dice were in that room at the time, that defendant was seen on several occasions sitting by the table rolling dice, and making bets upon plays, that he cashed two checks for a certain player to enable him to get money with which to play, that one witness "supposes" that defendant was banking the game, and another states as a conclusion, but not the facts on which he bottoms the conclusion, when the witness' memory is refreshed in the manner below stated, that defendant was banking the game, there is no evidence that defendant ever set up or kept the table or device, and none, except the inferences arising from the facts stated, that he owned either the table or the dice which together are alleged to constitute the device denounced.

Upon the trial, the prosecuting attorney, under the guise of refreshing the memory of Moore, Sheets, and Qualls, who were witnesses in the case for the state, read from their testimony given by them before the grand jury, and asked these witnesses categorically if they had not made the statements which he read to them. The defendant duly objected to this action of the prosecuting attorney, and, being overruled, properly saved his exceptions.

As showing clearly and definitely what occurred in this behalf, we set out below an excerpt from the record showing, in detail, the manner and form of the examination, the objections and exceptions of the defendant and the ruling of the court thereon: "Q. Just to refresh your memory, I will ask you if you didn't testify before the grand jury in May, 1913, to this fact— By Mr. Gantt: If the court please, I object to the prosecuting attorney asking the witness if he didn't testify to certain things before the grand jury. The question now is what this witness under oath remembers of this occurrence, and we object to the prosecuting attorney using notes of the grand jury or notes of something else in which it does not appear who took the notes, or it does not appear anything about it. By the Court: Objection overruled. (To which action of the court, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.) By Mr. Cave: Q. (reading). `I was in Patton's place two or three times in January and February, 1912, and found Patton sitting at the table with a stack of money in front of him.' Is that true or not? A. Yes, sir; and he was not the only one that had money in front of him. Q. You did see him at that time, or about that time? A. I could not say for sure. Q. Didn't you testify to that before the grand jury? A. Well, I reckon I did—if it is down there, I testified, of course. Q. Didn't you also testify to this: That you shot craps there at that time and that you were playing on a sort of a pool table? A. Yes, sir. Q. And that Patton was banker of the game, and sat there with a stack of money at his side? By Mr. Gantt: We object to this witness stating that Patton was the banker of the game. That is a matter for the jury to determine after hearing the testimony. By the witness: Somebody explain what a banker is, and I can tell. Q. (by Mr. Cave). Didn't you testify to those facts— By the Court: He is asking you whether or not you testified to that before the grand jury. Did you, or not? A. How can I remember now what I testified down there? By the Court: Don't you ask questions. You answer that question `yes' or `no,' if you can. Do you know whether you testified that before the grand jury? A. I know I testified some things. By the Court: Read that to him again. We will see if we can't help his memory some. Q. (by Mr. Cave, reading). `We played on an old pool table. Patton was banker of the game, and sat there with a stack of money at his side.' Did you testify to that before the grand jury? A. I think I did. Q. "The rest of the boys stood up around the table.' Did you testify to that? A. Yes sir; we all stood up. Q. `I would put my money down on the table, and Patton would take money from his stack and fade me, and then I would roll the dice.' Did you testify to that? A. Yes, sir."

The above method of examining the witnesses for the state was used by the...