State v. Pomeroy

• Decision Date: 19 November 1895
• Citation: 32 S.W. 1002,130 Mo. 489
• Parties: The State v. Pomeroy, Appellant
• Court: Missouri Supreme Court

32 S.W. 1002

130 Mo. 489

The State v. Pomeroy, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.

Defendant was indicted and convicted for the crime of establishing a lottery in the city of St. Louis and from the judgment rendered herein he appeals to this court.

The testimony in substance, discloses these facts: Defendant had an office on the third floor of a building on the northeast corner of Sixth and Chestnut streets, in the city of St Louis, where he ostensibly conducted a real estate business. In the month of June, 1894, Granberry, a police officer in plain clothes, visited the office, and, finding defendant in charge, represented himself as a stenographer for a large well-known wholesale house in the city, saying that he had been handling the tickets of several lottery concerns, but that he and his customers were not satisfied with results and wanted to try the tickets defendant was handling, those of L. E. Winn & Company whose names appear as agents on advertising ticket purporting to be issued by the company mentioned in the indictment, and which ticket was introduced and read in evidence.

Defendant offered to place lottery tickets in Granberry's hands for sale, with a commission on sales of twenty-five per cent, which was accepted, and he gave the officer for sale $ 15 worth of tickets, a part being of the value of one dollar each, a part fifty cents and a part twenty-five cents. These tickets were taken by defendant from a drawer in his desk which "seemed to be full of tickets." He gave the officer at the same time a number of circulars and lists of purported drawings, also advertising slips bearing numbers which purported to be themselves good for prizes in the event of such numbers "being drawn." These tickets and other documents purported to be issued by "the Louisana Lottery Company of Kansas City, New York, San Francisco, and Montreal (Canada), and that the drawings would be had at Kansas City, Kansas, on the second Tuesday of each month during 1894." No money was paid by the officer at the time, but it was agreed that he was to report to defendant upon the following Monday what success he met with in the sale of the tickets.

On Monday Granberry returned to the office, represented that he had disposed of ten fifty cent tickets, and paid defendant therefor $ 5; defendant paid him $ 1.25 as commission on such reported sale, and gave him ten more tickets of the same class to sell. Granberry then stated that his customers wanted to know when their tickets would be "cashed," in the event they should draw prizes, and defendant responded that he would cash all prizes drawn at his office on the twenty-first of the month, whether the amount was $ 5 or $ 5,000; he also told the officer that he was the general manager of the concern; was in St. Louis on a large salary; had a large number of "venders" under him; that he rented the office himself and paid for it a monthly rent of $ 15; that the "company" had large deposits in the different banks in the city; that the drawing took place in Kansas City, Kansas, etc. On the occasion of these visits defendant appeared to have charge of the office alone (there being an office boy in the anteroom), and all the lottery literature was kept in the desk at which he sat, and of which he appeared to have sole possession and control.

Two or three days afterward Granberry came again with two other officers, and defendant was taken into custody. An examination was made of his desk and office furniture, and there was found a large number of tickets, list of lottery drawings, advertising slips, etc. There were no "paraphernalia" of a drawing in the room. When defendant was taken to the police station he was searched, and there were found on his person some "bunches" of tickets and a small pocket memorandum book containing entries of names and amounts which (he admitted afterward upon the witness stand) were the names of persons to whom he had issued lottery tickets, and the amount in value of the respective quantities, ranging from $ 5 to $ 900.

The "tickets" thus acquired and taken from the defendant, upon their face were in the form following:

Class

The Louisiana Lottery Company of Kansas City, New

York, San Francisco, Montreal, Canada, will draw at

Kansas City, Kansas, Tuesday, July 10, 1894. This

Twentieth

one-twentieth ticket entitles the holder to one-twen-

tieth of such prize as may be drawn to its number in

25

the within named drawing, if presented for payment

Cents

within three months thereof.

four cipher eight three

4 0 8 3

There was also testimony given as to the manner in which lotteries are customarily drawn by wheels, cards, tubes, etc., and the manner in which the "prizes" are allotted.

Defendant offered no evidence in his behalf except his own testimony, which was substantially that he had no connection whatever with the Louisiana Lottery Company, except as a mere "vender," that he just took their tickets and sold them on commission, and made out of them what he could. He denied having told Granberry that he was one of the managers, or received a salary, or at any time "cashed" prize tickets; he admitted that he knew it was against the law to sell lottery tickets.

In connection with general instructions upon the credibility of witnesses, competency of defendant as a witness and reasonable doubt, the court charged the jury as follows:

"1. A distribution of prizes of some value by chance or lot constitutes a lottery or policy.

"2. If you believe from the evidence in the cause that the defendant, W. J. Pomeroy, at the city of St. Louis, state of Missouri, within three years next before the finding of the indictment, did unlawfully and intentionally make and establish, or aid or assist in making and establishing, as a business or avocation, a lottery, policy, or scheme of drawing in the nature of a lottery, known as the Louisiana Lottery Company, of Kansas City, New York, San Francisco and Montreal, Canada, whereby money to any extent was to be disposed of by lot or chance, you will find defendant guilty as charged in the indictment, and assess his punishment at, etc.; and unless from the evidence you so find, you will acquit him.

"3. The court instructs the jury that the mere fact that the defendant sold lottery or policy tickets is not of itself sufficient to prove the charge made in the indictment, unless they further find from the facts and circumstances given in evidence that at the time set out in the indictment, and within three years prior thereto, the defendant had established, or aided or assisted in establishing, a lottery, policy, or scheme of drawing in the nature of a lottery, as a business or avocation, or was substantially carrying on the business of a lottery, policy, or scheme of drawing in the nature of a lottery."

No instructions were asked by defendant, and at the close of the evidence the jury found him guilty and assessed his punishment at twelve months in the city jail.

The grounds of the motion for a new trial, so far as necessary to discuss them, were that there was an absolute failure of evidence showing the guilt of defendant of the offense with which he was charged; that the court admitted improper evidence, and that the court misdirected the jury in reference to the law of the case.

Reversed and remanded.

John A. Gernez for appellant.

(1) A conviction can not be sustained in the entire absence of evidence, direct or circumstantial, that the offense charged was committed in the county specified in the indictment. State v. McGinnis, 74 Mo. 245; State v. Meyer, 64 Mo. 190; State v. Miller, 71 Mo. 89; State v. King, 111, Mo. 576; State v. Hughes, 82 Mo. 86. (2) The constitutional provision that no person shall be compelled to testify against himself in a criminal case, prohibits the seizure of one's private papers and books in order to obtain evidence against him. U. S. Constitutional Amendments, 4 and 5; Missouri Constitution, secs. 11 and 23, art. 2; United States v. Boyd, 116 U.S. 616; Entic v. Carrington, 19 Howell's State Trials, 1029; State v. Davis, 108 Mo. 666. (3) Appellant complains not of instructions 1 nor 2 but does of 3, in so much as it seeks to modify instruction 2, by adding the words "substantially carrying on the business of lottery, etc." A certain state of facts either constitutes a certain crime or it does not. There are no shadings or degrees of that crime. When that crime is proven it ends it. And when a jury are invited to consider whether facts substantially prove a crime or not, they are invited to an investigation of which the law knows not.

R. F. Walker, attorney general and C. O. Bishop for the state.

(1) The instructions given by the court fully covered the law of the case, and directed the jury to acquit the appellant, if they believed his testimony, viz.: That he was simply a vender of lottery tickets and had no other connection with the alleged lottery scheme. The definition of "lottery" is that adopted by this court in State v. Mumford, 73 Mo 647. (2) The evidence on the part of the state warranted the verdict. One who aids in the establishing of a lottery is guilty of a felony, while one who merely sells tickets is guilty only of a misdemeanor. But it appears from the testimony on the part of the prosecution that not only did the appellant have large quantities of tickets, advertising circulars, drawing lists, and the like in his possession, but that he issued "bunches" of tickets, not in the way of a sale, but on commission, to be sold by the taker at a fixed rate of commission; and that by his own confession he was general manager of the concern, and had a large number of venders under...