State v. Sherman

• Decision Date: 17 May 1909
• Citation: 137 Mo. App. 70,119 S.W. 479
• Parties: STATE v. SHERMAN
• Court: Missouri Court of Appeals

119 S.W. 479

137 Mo. App. 70

STATE v. SHERMAN

Kansas City Court of Appeals. Missouri.

May 17, 1909.

1. GAMING (§ 90)—PROSECUTION—INFORMATION.

An information charging that accused, a licensed dramshop keeper, did unlawfully set up and keep and use, and permit to be kept and used, in his dramshop, certain tables and cards, adapted, devised, and used for playing games of chance, and did unlawfully permit certain persons in his dramshop to play upon the tables certain games of cards and with cards adapted, devised, and used for playing games of chance, etc., sufficiently defined the offenses denounced by Rev. St. 1899, § 3018 (Ann. St. 1906, p. 1729), making it an offense for a dramshop keeper to set up and keep in his dramshop the devices described for gaming or playing games of chance, and also making it a separate offense for such a person to permit such devices to be used in gaming or playing games of chance.

2. INDICTMENT AND INFORMATION (§ 125)— KEEPING GAMING DEVICES—DUPLICITY.

The two offenses being charged in one count, the information was duplicitous, since, while the offenses could be joined in one information, they being kindred, congruous, and punishable by the same penalty, they should be stated in different counts.

3. INDICTMENT AND INFORMATION (§ 125)— "DUPLICITY."

"Duplicity" in an indictment or information is the joinder of two or more distinct offenses in one count.

4. INDICTMENT AND INFORMATION (§ 133)— CRIMINAL LAW (§§ 915, 970)—DUPLICITY— MODE OF OBJECTION.

The objection that an indictment or information is duplicitous must be taken advantage of by motion to quash, demurrer, or a motion to compel the state to elect, and cannot be urged for the first time upon motions for new trial and in arrest.

5. CRIMINAL LAW (§ 400)—EVIDENCE—BEST EVIDENCE—LICENSE OF DRAMSHOP KEEPER.

An accused's dramshop license is the best evidence that he is a licensed dramshop keeper.

6. CRIMINAL LAW (§ 402) — EVIDENCE—SECONDARY EVIDENCE — FOUNDATION — NOTICE TO PRODUCE PRIMARY EVIDENCE.

A notice to a person to produce his dramshop license at his trial for a criminal offense, served on him before the filing of the information therein, is a nullity and no basis for the introduction of secondary evidence of the license.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

R. Sherman was convicted of setting up devices for playing games of chance in his dramshop, etc., and appeals. Reversed and remanded.

M. R. Lively, for appellant. Byron H. Coon, Pros. Atty., for the State.

JOHNSON, J.

On information of the prosecuting attorney of Jasper county, defendant was arrested, tried, and convicted on the charge of a violation of section 3018, Rev. St. 1899 (Ann. St. 1906, p. 1729). The first point for a reversal of the judgment advanced by defendant, who brought the case here by appeal, was made for the first time in the trial court in his motion in arrest of judgment. The point is that the information "fails to charge the defendant with any offense against the laws of the state of Missouri." The information is as follows: "H. C. Compton, prosecuting attorney within and for the county of Jasper and state of Missouri, upon his official oath informs the court and charges that R. Sherman, whose given name is to this prosecuting attorney unknown, in the county of Jasper and state of Missouri, on or about the 4th day of December, 1907, being then and there a licensed dramshop keeper according to law, and then and there keeping and operating a dramshop under a license as a dramshop keeper on the east half of lot No. 24, and the west half of lot No. 25, South Carterville's Mining & Smelting Company's Second addition to the city of Carterville in said county of Jasper and state of Missouri, did then and there unlawfully set up and keep and use and permit to be kept and used in and about the...