State v. Patton
| Decision Date | 17 February 1914 |
| Parties | THE STATE v. OWEN PATTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.
Reversed and remanded.
E. S Gantt for appellant.
(1) There is no evidence that the defendant was the keeper of the game and the peremptory instruction should have been given. State v. Miller, 234 Mo. 588; State v Solon, 247 Mo. 672; Nelson v. U.S., 28 App D.C. 32; Howard v. State, 91 S.W. 785; Blum v. State, 47 S.W. (Tex.), 1002. First: There is no evidence that defendant set up, kept or furnished the table. Second: There is no evidence that defendant kept or furnished the dice. Third: There is no evidence that the defendant had the care or management or acted as master in charge of said table and pair of dice. Every element of the offense must be proven to convict the defendant. State v. Solon, 247 Mo. 673; State v. Bass, 251 Mo. 108. (2) The testimony of the witness Moore, that the room in question was "called and spoken of by the boys" as Hi Patton's and Rogers' and Patton's place or room was the merest hearsay, inadmissible and prejudicial to defendant. Mache v. State, 109 S.W. (Tex.), 126; State v. Levy, 168 Mo. 522; State v. Walsh, 203 Mo. 605; State v. Hughes, 71 Mo. 633; Sara v. State, 22 Tex.App. 639; Loraine v. State, 22 Tex.App. 640; Gambel v. State, 21 Tex.App. 357; Allen v. State, 15 Tex.App. 320; Burton v. State, 16 Tex.App. 156; Wharton's Criminal Evidence (9 Ed.), sec. 260; State v. Hand, 7 Iowa, 411; State v. Mosby, 53 Mo.App. 575. (3) The court erred in permitting the prosecuting attorney to read from notes of the grand jury to witnesses and ask them if they didn't so testify before the grand jury. Comm. v. Phelps, 77 Mass. (11 Gray) 73; Pride v. State, 107 S.W. 819. The prosecuting attorney has no right to cross-examine or impeach his own witnesses. Under proper circumstances, he may have the witness read his testimony given before the grand jury for the purpose of refreshing his memory. After the witness has read his testimony before the grand jury, he may then inquire of the witness what his recollection is about the matter. In other words, the witness must testify from his own recollection after he has read his testimony before the grand jury. Shrouder v. State, 121 Ga. 615; State v. Aspara, 113 La. 940; Smith v. State, 46 Tex. Cr. 267; State v. Legg, 59 W.Va. 315; Billings v. Ins. Co., 70 Vt. 477; Vastbinder v. Metcalf, 3 Ala. 100; Fitzgibbon v. Kinney, 3 Har. 317; Finch v. Barclay, 87 Ga. 393; Johnson v. Culver, 116 Ind. 278; Owings v. Shannon, 8 Ky. 188; Key v. Lynn, 14 Ky. 338; Mitchell v. Robinson's Exr., 7 Ky. L.R. 98; Lawrence v. Barker, 5 Wend. 301; Green v. Brown, 3 Barb. 119; Howie v. Rea, 75 N.C. 326; Putnam v. United States, 162 U.S. 687. (4) The court erred in not giving the instruction asked by the defendant: That instruction told the jury that before they could convict the defendant, they should consider the whole evidence in the case, and unless they believed beyond a reasonable doubt, from the whole evidence, that the defendant was the keeper, then they should acquit him, even though some circumstances in the case might raise a suspicion in their minds. State v. Miller, 234 Mo. 588; State v. Howell, 117 Mo. 324; State v. Wells, 111 Mo. 533.
John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
(1) The trial court's ruling was entirely correct. The prosecuting attorney undoubtedly had the right to refresh the witnesses' memories from the memoranda of their evidence taken before the grand jury, as the witnesses seemed to have failed in memory. 1 Greenleaf on Evidence, sec. 436; Sandwell v. Sandwell, Comb. 445, Holt. 295; Nichol v. Webb. 8 Wheat. 326; Wood v. Cooper, 1 Car. & K. 645; Billingslea v. State, 85 Ala. 323; State v. Miller, 234 Mo. 588. It is not the memorandum that is competent, it is the memorandum that may be used to refresh the witness's memory. Putnam v. U.S., 162 U.S. 697; Hickory v. U.S., 151 U.S. 303; Morrison v. Chapin, 97 Mass. 72; Insurance Co. v. Evans, 15 Md. 54. (2) The ruling of the trial court in denying the request of defendant's counsel to examine the notes of the testimony given by the witnesses before the grand jury is not subject to review on this appeal, as no exception was taken in the motion for a new trial to the trial court's action in this regard. Sec. 5285, R.S. 1909; State v. Mann, 83 Mo. 589; State v. Scott, 214 Mo. 257; State v. Wilson, 225 Mo. 503; State v. Holden, 203 Mo. 581; State v. Gatlin, 170 Mo. 354. (3) The testimony was amply sufficient to prove every essential element of the charge filed against the defendant. Sec. 4750, R.S. 1909; Stevenson v. State, 83 Ga. 575; Scott v. State, 29 Ga. 263; State v. White, 123 Iowa 425. One who permits or suffers a house or place owned, occupied or controlled by him to be used for gambling purposes violates this statute. State v. Stillwell, 20 Ark. 96; Stith v. State, 13 Ark. 680; Alexander v. Commonwealth, 12 Ky. L.R. 470; State v. Ebert, 40 Mo. 186; State v. Smith, 19 Mo. 683; State v. Fulton, 19 Mo. 680; State v. Mohr, 55 Mo.App. 329. Where two or more persons have the joint control or occupancy of premises (as in this case), one of them may be guilty and his cotenants innocent of the offense of permitting the use of premises for gaming. White v. Comm., 5 Ky. L.R. 318.
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 second-hand furniture business at Fulton, Missouri. 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 paint shop by said Rogers. In the back part of this paint shop was a room which could be entered from the rear, or from an alley adjoining it, or by going through the paint shop. On divers days about the 5th of February, 1912, the testimony shows that there was in this rear room of the paint shop 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's 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's 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:
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