State v. Pollnow

• Decision Date: 18 December 1928
• Docket Number: No. 28762.,28762.
• Parties: STATE v. POLLNOW.
• Court: Missouri Supreme Court

14 S.W.2d 574

STATE v. POLLNOW.

No. 28762.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Motion for Rehearing Overruled March 2, 1929.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

Fred L. Pollnow was convicted of setting up and keeping a gambling device, and he appeals. Affirmed.

Frank Coffman, of St. Louis, for appellant.

Stratton Shartel, Atty. Gen., and Smith B. Atwood, Asst. Atty. Gen., for the State.

WHITE, J.

In the circuit court of the city of St. Louis, October 25, 1926, the appellant was convicted and sentenced to six months' imprisonment, on a charge of setting up and keeping a gambling device, in violation of section 3537, R. S. 1919.

The evidence shows that he and his brother, Caesar, constituted the General Vending Machine Company, located at 3124 California avenue, St. Louis, Mo. They kept a number of machines, about fifteen, according to one witness, at that place, but transacted no other business. Those machines were sent out from time to time to other places. According to the testimony of one policeman, the defendant explained the operation of one of these machines. He took it to the police station for the purpose, and showed how a gambling feature had been eliminated. It was operated by putting a nickel in the slot and taking out mint or something of the kind. The machine itself, as reconstructed, did not pay the player when he won. The winner was paid by the man in whose place the machine was operated. One of those machines was set up and operated at 2700 Lafayette street, at the place of one William Peikert. Peikert testified that the winner who put his nickel in the slot was not paid out of the machine, but Peikert himself paid the money out of his pocket, and he was reimbursed by the earnings of the machine, which came into an aluminum box, attached to the left side and kept locked. The evidence sufficiently shows that it was a gambling device, cleverly constructed in an attempt to evade the law.

I. The principal point made by the appellant is that the evidence was insufficient to show that the defendant set up the machine which was in operation at Peikert's place. It was taken to the police station and was in the courtroom as an exhibit at the time of the trial. The machine was brought to Peikert's place by one John J. Mills. A card tacked on the back of the machine read: "The number of this machine is 546. Agent's name, Mills. Grand 2338R." Peikert testified that Mills explained to him how the machine worked. He said: "Here is the key. Use it." Peikert had had another machine of the same character, and Mills said: "Run it the same as the other one." Peikert repeated Mills' statement in this way: "They are like the others and they run the same way. Here is the key. Use your own judgment; you have used them before." The witness further then gave Mills' statement in this way: "Use your own judgment how they work, and pay off like you did on the others." When Mills first came in to put up the machine, witness said to him: "They won't allow you," and Mills replied: "They will allow it." And the witness said: "Bring it in."

From the evidence it seems clear that Peikert did not buy the machine, but it was set up in his place and he was paid some profit on its operation. It was not proved, appellant claims, that Mills was the agent of the defendant to set it up. One Hagerdorn testified as a witness for the state. He worked for Pollnow at 3124 California as a janitor. He saw Mills there. Mills stood around, sat around, answered telephone calls, and talked with defendant. The witness appeared to be quite unwilling, or was very uncertain in some of his statements. He saw machines taken out of the store when they were bought or rented. The agent would take the machines out. Witness said Mills was an agent. On cross-examination, he said he did not know that Mills was an agent, but he acted like an agent. The witness was badly mixed, up in his cross-examination. The fact that the machine at Peikert's place was one of the defendant's machines seems sufficiently proven. That it was put in Peikert's place by Mills is not disputed. The fact that Mills was busy more or less about the Pollnow place, and that his name as an agent is attached to the card which was affixed to the machine which was put in Peikert's place, and no explanation offered to offset the natural inference, is sufficient to...