State v. Rosenblatt

• Decision Date: 22 November 1904
• Citation: 185 Mo. 114,83 S.W. 975
• Parties: STATE v. ROSENBLATT.
• Court: Missouri Supreme Court

83 S.W. 975

185 Mo. 114

STATE v. ROSENBLATT.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

GAMING — GAMBLING DEVICES—INDICTMENT—SUFFICIENCY — CRIMINAL LAW — PRACTICE— MOTIONS IN ARREST — ERROR — FINAL JUDGMENT.

1. Under Rev. St. 1899, § 2697, providing that writs of error on a final judgment on an indictment shall issue of course, a writ of error can be prosecuted only from a final judgment.

2. Under Rev. St. 1899, § 2690, providing that defendant in a criminal case may file a motion in arrest that no judgment be rendered on the verdict or finding, such motion must be filed before sentence, and, if filed after sentence, does not prevent issue of writ of error.

3. Where no crime is charged in the indictment, a plea of guilty amounts merely to an admission of record of the truth of whatever is sufficiently alleged in the indictment, and will not prevent defendant from taking advantage of the defects in the indictment on writ of error.

4. An indictment charging a statutory crime should use the material words of the statute or their legal equivalent.

5. A crap table and a chuck-a-luck table, although not specifically mentioned, are within the prohibition of Rev. St. 1899, § 2194, making it a felony for one to set up or keep and to entice or permit any person to play on, any table or gambling device "commonly called A. B. C., faro bank, E. O., roulette, equality, keno or any kind of gambling table or gambling device" adapted for the purpose of playing games of chance.

6. Under Rev. St. 1899, § 2194, making it a felony for one to set up or keep, and to entice or permit any person to play on, any table or gambling device "commonly called A. B. C., faro bank, E. O., roulette, equality, keno or any kind of gambling table or gambling device" adapted for the purpose of playing games of chance, it is not necessary for an indictment charging the setting up of a chuck-a-luck table and a crap table to allege that they are gambling devices of a like kind as A. B. C., faro bank, E. O., roulette, keno, and equality.

Error to Criminal Court, Buchanan County; B. J. Casteel, Judge.

Lee Rosenblatt was convicted of setting up gambling devices, and brings error. Writ of error quashed, and judgment affirmed.

C. C. Crow, for plaintiff in error. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, P. J.

From a conviction and sentence by the criminal court of Buchanan county, the defendant has taken his writ of error to this court. Preliminary to any investigation to the sufficiency of the indictment, the attorney general has moved to dismiss the writ of error on the ground that the cause was not prosecuted to a final judgment in the criminal court because there is a motion in arrest of judgment yet pending before and undisposed of by the criminal court, and also because the record shows that defendant entered a plea of guilty and agreed to the judgment against him, and that no writ of error will lie in such case. For a proper understanding of the questions thus raised, we must look to the record certified to us.

It appears that a grand jury was duly impaneled at the March term, 1903, of the criminal court of Buchanan county, and on the 4th day of April, 1903, the said grand jury returned into court an indictment against the defendant for setting up and keeping divers gambling devices, adapted, devised, and designed for the purpose of playing games of chance for money and property, and enticed and permitted divers persons to the grand jury unknown to bet and play at and upon and by means of said gaming tables and devices. Afterwards, on the 6th day of April, 1903, the defendant was duly arraigned, and pleaded not guilty to said indictment. Afterwards, on the 26th day of April, 1903, and at the same term, the record in said cause recites: "Comes now the prosecuting attorney, and the defendant in open court withdraws his plea of not guilty heretofore entered herein, and enters plea of guilty, and by agreement his punishment is assessed at six months in the county jail. Wherefore it is ordered and adjudged by the court that the said Lee Rosenblatt be confined in the common jail of Buchanan county, Missouri, for the period of six months from the 26th day of June, 1903, for the crime of setting up and keeping gambling devices, or until he is otherwise discharged by due course of law." It further appears that on the same day, and after the sentence of the court, the defendant filed a motion in arrest of judgment, and the record is silent as to any disposition of said motion. It will be observed that the state makes this motion to dismiss, and that the defendant made no objection and took no exception to the action of the court in sentencing him before his motion in arrest was disposed of by the criminal court. The question, then, is, was there such a final judgment of the criminal court as to authorize a writ of error therefrom? Writs of error under our statute and practice can only be prosecuted from final judgments. Section 2697, Rev. St. 1899. And the same is true of appeals. Section 2696, Rev. St. 1899; State v. Watson, 95 Mo. 411, loc. cit. 414, 8 S. W. 383, 384; State v. Love, 52 Mo. 106; State v. Gregory, 38 Mo. 502; State v. Copeland, 65 Mo. 497. That the criminal court did sentence the defendant is too plain for discussion or doubt. What effect, then, is to be given to the motion in arrest filed after this final judgment? Both at common law and by our statute a motion in arrest must be filed before sentence. Thus Chitty in his Criminal Law (5th Ed.) p. 663, says, "The defendant may move at any time in arrest of judgment before the sentence is actually pronounced upon him;" and again: "But if the sentence is once pronounced, though before the actual entry of the judgment, the court are not bound to attend at all to a motion of this nature, even though a formal error should be discovered sufficient to reverse the proceedings, but the defendant is left to his writ of error, though, as we have seen, the court may, without any motion, arrest the judgment, and may alter the sentence any time during the term." Bishop, in his work on Criminal Procedure (1st Ed.) § 852, adopts Chitty's statement of the practice on this subject. The practice in this state in criminal cases as to motions for new trial and in arrest of judgment is different from the practice in civil cases. In the latter we have not followed the common-law practice of waiting for four days after the rendition of the verdict before having the judgment signed and entered, but it is the approved practice in civil cases for the clerk to enter the verdict on the record and the judgment upon it, and the right to file a motion for new trial or in arrest within the four days allowed by the statute is not affected by the entry of the judgment before the filing of the motion for new trial or in arrest, whereas in criminal cases it is specifically provided by section 2689, Rev. St. 1899, that such motion shall be filed "before judgment"; and the same is true of motions in arrest. Section 2690, Rev. St. 1899. And such is the accepted practice in this state. It is the evident purpose of our statute to continue the common-law practice in this respect in criminal cases, and it is apparent that a motion in arrest after final judgment in a criminal cause in no manner affects the finality of the judgment, and such a motion does not operate to stay the effect of the judgment; but as is said by Chitty, "the court is not bound to attend at all to a motion of this nature." In Illinois, where the common-law practice still obtains to a large degree, it was ruled in Parr v. Van Horne, ...