State v. Rizor

• Decision Date: 07 June 1943
• Docket Number: 38191
• Citation: 171 S.W.2d 710,351 Mo. 137
• Parties: State v. Roy Rizor, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 710

351 Mo. 137

State v. Roy Rizor, Appellant

No. 38191

Supreme Court of Missouri

June 7, 1943

Appeal from Cedar Circuit Court; Hon. Thomas W. Martin Judge.

Affirmed.

Collins & Osborn for appellant.

(1) The amended information was sworn to out of time in Vernon County after the case was ordered transferred to Cedar County on change of venue and without leave of court, and should have been quashed. State v. Powell, 66 Mo.App. 598. (2) It was very prejudicial to defendant to admit the dice table the dice and other paraphernalia and money found with said table, and especially the pair of dice denominated crooked dice, and allow the witness Coberly to explain to the jury the use of same and show them how the game was played and to state in answer to a question by the prosecuting attorney that a 7 could not be made with said dice, without first showing that defendant had used, permitted or induced others to use or play with them for money or property. R. S. 1939 sec. 4675. (3) In the final argument of the prosecuting attorney his conduct and statements were highly inflammatory and calculated to prejudice the jury against the defendant and tended to cause them to bring in an excessive verdict. State v. Pagels, 92 Mo. 311; State v. Lee, 66 Mo. 167; State v. Hibler, 149 Mo. 478; State v. Nasello, 325 Mo. 442; State v. Mathis, 18 S.W.2d 8. (4) All the facts and circumstances shown by the State's evidence could exist, and yet the defendant be innocent of any crime. The evidence as a whole leaves too much room for doubt and mistake, and does not possess sufficient proof of guilt to authorize the State to deprive defendant of his liberty. State v. Capps, 278 S.W. 695. It takes more evidence than mere conjecture and speculation to sustain a conviction. State v. Morney, 196 Mo. l. c. 49; State v. Buckley, 274 S.W. 74. (5) The court in commenting of the evidence and sufficiency of the evidence was prejudicial to the defendant and had a tendency to influence the jury against the defendant based on said comments. (6) The court should have instructed the jury on the whole of the case and especially on the weight to be given to the evidence of an accomplice in crime. (7) The court should have set aside the verdict and granted defendant a new trial on the grounds that the verdict was in conflict with Instruction A for defendant, the reason that Instruction 5 was erroneous and allowed a conviction without proof that money or property was bet, lost or won on said table. (8) The court erred in not instructing the jury on all the law in the case especially on the weight to be given the testimony of an accomplice in crime. (9) The court erred in not quashing the amended information. It shows on its face that it was sworn to in Vernon County, on May 24, 1941, after the case had been ordered transferred to Cedar County, Missouri, on May 12, 1941, and filed in Cedar County on May 26, in vacation and without leave of court first had or afterward granted. R. S. 1939, sec. 3898.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) There was substantial evidence to sustain the verdict of the jury. (2) Paragraph (3) of appellant's motion for new trial is too general an assignment of error and is insufficient to preserve anything for review. State v. Adams, 19 S.W.2d 671, 323 Mo. 729; State v. Sherry, 64 S.W. 238; State v. Peterson, 154 S.W. 134. (3) There was no error committed by the trial court in admitting the testimony and exhibits in Par. 4, and the various subdivisions (a) to (e) inclusive. Sec. 4675, R. S. 1939; Underhill Criminal Evidence (4 Ed.), sec. 751; State v. Potts, 239 Mo. 403, 144 S.W. 495. (4) The court did not err in overruling appellant's motion to quash the information and plea in abatement as set forth in Paragraphs 5 and 6 of the motion for new trial. State v. Neeley, 56 S.W. 64. (5) The court did not err in overruling the appellant's demurrer to the evidence in Paragraph 7. (6) The verdict of the jury was not excessive. Sec. 4675, R. S. 1939; State v. Preslar, 300 S.W. 687, 318 Mo. 679; State v. Wheeler, 2 S.W.2d 777, 318 Mo. 1173. (7) The court instructed the jury on all necessary questions of law in the case, however, this assignment is not definite or certain enough to preserve anything for review. State v. Woolsey, 33 S.W.2d 955; State v. Layton, 58 S.W.2d 454, 332 Mo. 216; State v. Fisher, 46 S.W.2d 555. (8) There was no misconduct on the part of the counsel for the State. State v. Woolsey, 33 S.W.2d 955; State v. Singleton, 77 S.W.2d 80; State v. Martin, 56 S.W.2d 137; Missouri Criminal Law (Cum. Sup.) Key No. 1037 (1 & 2). (9) There was no misconduct on the part of the trial judge which would justify a reversal of this case for that reason. State v. Perkins, 92 S.W.2d 634. (10) The trial judge did not err in questions asked by him as set forth in Paragraph 11. (11) The court did not err in statements made to appellant's counsel relative to restricting their objections during the argument of the prosecuting attorney. State v. Martin, 56 S.W.2d 137.

OPINION

Leedy, P. J.

Defendant appeals from a judgment of the Circuit Court of Cedar County convicting him of feloniously setting up and keeping a gambling device, to-wit, "a crap table, otherwise known as a dice table," in violation of Section 4675 Mo. R. S. A. The case originated in Vernon County but was transferred on defendant's application for a change of venue. Punishment was assessed by the jury at imprisonment in the penitentiary for a term of two years, and defendant was sentenced accordingly.

One of the assignments is that relating to the sufficiency of the evidence, which was challenged by demurrer at the close of the state's case. The court declined to give a peremptory instruction, and defendant stood on his request therefor, and introduced no evidence.

The testimony offered by the state was to the following effect: At about 2 o'clock P. M., on April 20, 1940, the date in question, the Sheriff of Vernon County and his deputies raided a billiard hall on East Walnut Street in Nevada, and found nine men, including defendant, playing poker in a back room. They also found in said room a large dice or crap table. It was covered with green cloth, and was marked off or lettered. There was a cut out place, or indentation at one end "for the man operating it to stand, and the rest of the way around the table was for the players." A rake or dice stick was on the table, and in a drawer of the table the officers found chips, a dice cup and dice. No one was playing at the dice table at the time of the raid. The table and paraphernalia above described were seized by the officers, and were introduced in evidence. All of said players were arrested, charged with gambling in having played poker, entered pleas of guilty, and were sentenced for that offense. All of the men present in the room at the time of the raid testified with the exception of defendant Rizor, Henry Orrence, and Robert Cargill.

One of them, Otto Shepley, testified that he was a frequenter of the place; and was playing poker therein at the time of the raid, that he saw the dice table, and that on the day in question, and before the raid, he saw two men playing dice thereon, one of whom he identified as Orrence and the other as a stranger; that he "saw the chips change hands there . . . from the box Roy Rizor was handling to some of the players," and as nearly as he could see it, "it looked as if it was money"; that defendant was standing in the cut out portion of the table raking in the dice; that before the game started, he heard defendant say he would like to start a crap game, and a short time thereafter the game started; that he had been in the place a week previously, at which time the dice table was not there. The witness admitted that some twenty-five years before, when he was 16 years of age, he was convicted (the nature of the offense was not shown) and sentenced to the reformatory.

Witness Moberly testified, somewhat reluctantly, that he shot craps on the table with Orrence on the day in question, and that he, the witness, lost, and Orrence won. He further stated he did not know who operated or had charge of the game, but said defendant was present.

R. D. ("Kiddo") Mason, one of those in the raid, testified he and Bill Shafer had been running the poker room some three or four months, and that about a week before April 20, 1940, defendant "came in" with them in the operation of said poker room and thereafter the three of them conducted it; that the dice table was brought in in his absence; that he knew it was "brought up there, that is all." When pressed for an explanation about how it happened to be brought up there, the following occurred:

"Q. Do you know anything about how it came to be brought up there?

A. Well, we was going to use it in there.

Q. . . . Who do you mean -- 'we'?

A. Well, me and that fellow that was in with me [Shafer] and Roy [defendant] there. . . . We was going to put in a dice game.

Q. Who was going to put in a dice game?

A. All three of us."

The witness further testified the table had been "brought up there" during the week before the raid.

Bill Shafer corroborated his partner, Mason, and testified defendant came to him, and "wanted to come in with the poker game, and wanted to bring a dice table along"; that he talked it over with his partner, Mason, but before reporting back to defendant, the latter had workmen change the partitions in the building, and made the room larger; that he was surprised to find the workmen there, and stated "they had stole a march" on him, to which defendant replied he "thought it was all right -- the arrangements, it was all right. Q. What arrangement? A. ...