State v. Saussele

• Decision Date: 08 March 1954
• Docket Number: No. 43625,43625
• Parties: STATE v. SAUSSELE.
• Court: Missouri Supreme Court

Page 290

265 S.W.2d 290

STATE v. SAUSSELE.

No. 43625.

Supreme Court of Missouri, En Banc.

March 8, 1954.

Morris A. Shenker, Sidney M. Glazer, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

HYDE, Presiding Judge.

Defendant was found guilty of a felony on the following verdict: 'We, the Jury in the above entitled cause, find the defendant guilty of occupying premises and keeping and using therein devices for the purpose of recording bets on horse races and assess his punishment at Two Thousand Five Hundred ($2,500.00) Dollars fine.' The Court reduced the fine in accordance with Section 546.500. Statutory references are to RSMo and V.A.M.S. Defendant was sentenced to pay a fine of $1,000, and has appealed. He contends that both the indictment and the verdict are fatally defective.

The indictment was in two counts but Court One was dismissed. Count Two, which was based on Section 563.360, was as follows: 'That defendant Theodore O. Saussele, on the 31st day of October, one thousand nine hundred and fifty-one at the City of St. Louis aforesaid, did occupy the building or a part of the building located at 2001 Park Avenue, in the said City and did unlawfully and wilfully, knowingly and feloniously keep, exhibit, use and employ therein certain devices and apparatus, to-wit: books, sheets, racing charts, betting tabs, form sheets and other paraphernalia for the purpose of recording bets and wagers upon the results of trials and contests of speed or power of endurance of horses, which said contests were to be made or to take place at various tracks without this state, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'

Section 563.360 provides, in part, thus: 'Any person who occupies any room, shed, tenement, tent, booth, building or enclosure, or any part thereof, in this state, with any book, sheet, blackboard, instrument or device or substance for the purpose of recording or registering bets or wagers or selling any pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or to take place within or without this state; * * * shall, on conviction, be adjudged guilty of a felony.'

Defendant claims the indictment fails to charge an offense because it pleads legal conclusions and does not particularize the offense, citing State v. Burke, 151 Mo. 136, 52 S.W. 226. The indictment herein follows the language of the statute, and as recognized in the Burke case, 151 Mo., loc. cit. 142, 52 S.W. loc. cit. 227, the rule is 'that it is sufficient to charge 'statutory offenses in substantially the language of the statutes creating them, when the statute in question sets forth the constituent elements of the offense'; and that 'it is sufficient to frame the indictment in the words of the statute in all cases when the statute so far individuates the offense that the offender has proper notice, from the mere adoption of statutory terms, what the offense he is to be tried for really is.'' State v. Lundry, 361 Mo. 156, 233 S.W.2d 734, 736. See also cases under Indictment and Information k 110(3)(16), West's Missouri Digest. However, the indictment herein does more than state statutory language. In the Burke case, which was under a different statute, the indictment did not describe the 'means employed to record and register the divers and sundry bets' [151 Mo. 136, 52 S.W. 228] alleged to have been made. The indictment herein does describe the devices alleged herein to have been kept for recording bets, namely: 'books, sheets, racing charts, betting tabs, form sheets.' Moreover, it specified these were for the purpose of recording bets 'upon the results of trials and contests of speed or power of endurance of horses,' at tracks 'without this state,' which was not true of the indictment in the Burke case. Since Count One of the indictment was dismissed, we do not consider defendant's contention as to the repeal of the statute upon which it was based. We hold the indictment herein sufficient.

As to the verdict, defendant says it is defective as a special verdict because it does not find all of the essential elements of the offense charged and that it is defective as a general verdict because it does not state upon which count the defendant was found guilty. However, the first count of the indictment was dismissed and the Court said: 'Inasmuch as no reference to counts was made in the presence of this jury either during the opening statement or any other time, I see no need to make mention of it in the instructions.' There was no objection or request for any instruction concerning counts. Therefore, there were no counts for the jury to specify, and a verdict without any specification of counts was proper.

It is true that this verdict is similar to those which have been called special verdicts in the following cases: State v. De Witt, 186 Mo. 61, 84 S.W. 956; State v. Cronin, 189 Mo. 663, 88 S.W. 604; State v. Modlin, 197 Mo. 376, 95 S.W. 345; State v. Griffin, 278 Mo. 436, 212 S.W. 877; State v. Griffin, Mo.Sup., 228 S.W. 800; State v. Knoch, Mo.Sup., 14 S.W.2d 424; State v. Thompson, Mo.Sup., 29 S.W.2d 67; State v. Mitnick, 339 Mo. 127, 96 S.W.2d 43; State v. Birkner, Mo.Sup., 229 S.W.2d 674. Nevertheless, these were not true special verdicts. Bishop's New Criminal Procedure, 2d Ed., Sec. 1006, defines a special verdict as 'one which sets out the facts, leaving the Court to draw therefrom the conclusion of law.' See also Wharton's Criminal Procedure, 10th Ed., Sec. 1678; 23 C.J.S., Criminal Law, Sec. 1399, p. 1078. Bishop also says, of a special verdict, that 'after stating the facts, it finds the defendant guilty if such is the Court's conclusion of the law upon them; but if the Court holds otherwise, not guilty.' See form of special verdict set out in Commonwealth v. Eichelberger, 119 Pa. 254, 13 A. 422, 4 Am.St. 642. We have said: 'It is always within the province of the jury to return a special verdict finding the facts constituting the offense, and in such case the verdict must find all the essential elements of the offense, or it will be invalid.' State v. Bishop, 231 Mo. 411, 133 S.W. 33, 34, on authority of Bishop's New Criminal Procedure and State v. De Witt, supra; see also State v. Knoch, Mo.Sup., 14 S.W.2d 424. We have no statutory provisions for special verdicts in criminal cases and the whole matter of form of verdicts seems to be left to common law procedure, except the requirements for stating offenses of different degrees and fixing punishment. See Secs. 546.390-546.420, Sup.Ct. Rules 27.01-27.02. Certainly, it does not seem reasonable to believe that the juries in the above cited cases intended to return a true common law special verdict, finding only the facts of the case and leaving the Court to draw the conclusions of law from these facts as to whether or not the defendant was guilty, because in all of them the jury unconditionally found the defendant guilty and fixed his punishment.

What it seems the verdicts in those cases really attempted to do was not to make a special finding of the facts for the Court to pass on but instead to describe the offense of which the jury intended to find the defendant guilty; and, of course this must be done in a way that is difinite, certain and responsive to the charge upon which the defendant was tried. See State v. Reeves, 276 Mo. 339, 208 S.W. 87. The best practice and the surest way to prevent a verdict from being construed as other than a general verdict is to add the words 'as charged in the indictment' or 'information.' However, we have consistently held that those words are not essential to a general verdict. State v. Carroll, 288 Mo. 392, 232 S.W. 699; State v. Bacey, Mo.Sup., 267 S.W. 809; State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16; State v. Dimmick, 331 Mo. 240, 53 S.W.2d 262; State v. Wright, 342 Mo. 58, 112 S.W.2d 571; State v. Ward, 356 Mo. 499, 202 S.W.2d 46. The Missouri cases hereinabove cited, denominating certain verdicts as special verdicts, actually seem to have been decided on the basis of definiteness, certainty and responsiveness of the verdict. See Webber v. State, 10 Mo. 4, cited in the DeWitt case, supra, 186 Mo., loc. cit 68, 84 S.W. 956. Of course, a verdict that does not refer to the indictment in its description of the offense, of which it finds the defendant guilty, must be responsive to the charge made by the indictment and certain as to the offense intended; or, as the cases say, a verdict must contain either in itself or by reference to the indictment all of the essentials of the crime. See State v. DeWitt, supra, 186 Mo., loc. cit. 69, 84 S.W. 956. However, we have also said: 'It is a wholesome precept that verdicts should be given a reasonable intendment and a like construction, and are not to be avoided unless it is evident they will work manifest injustice.' State v. Jordan, 285 Mo. 62, 225 S.W. 905, 907; State v. Cutter, 318 Mo. 687, 1 S.W.2d 96; State v. Carter, Mo.Sup. 64 S.W.2d 687. The standard stated in State v. Jordan, 285 Mo., loc. cit. 73, 225 S.W. loc. cit. 907 is: the verdict must be sufficiently definite and certain 'that upon the entry of a judgment thereon it would have constituted a bar to a further prosecution * * * for the same offense'.

Measured by these rulings we think the verdict herein was definite, certain and responsive. Defendant's complaint is that the verdict refers to 'premises' instead of the building specified; that it does not state defendant knowingly did the acts charged; and that it uses the word 'devices' instead of specifying any of the things referred to as devices in the indictment. We think this verdict was sufficient in these respects and definite and certain enough so that an entry of judgment thereon would constitute a bar to a further prosecution of defendant for the same offense. The only...