State v. Solon

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1023
• Parties: STATE v. SOLON.
• Court: Missouri Supreme Court

153 S.W. 1023

STATE v. SOLON.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. WITNESSES (§ 262) — RECALLING — REOPENING CASE.

The court's action in permitting the state, after resting, to reopen the case and recall a witness for further examination, was within its sound discretion.

2. CRIMINAL LAW (§ 1167) — APPEAL — HARMLESS ERROR.

Where accused was only convicted on one count of the information, failure to require the prosecution to elect as between counts and to instruct that the jury should convict only upon one count was not prejudicial to accused.

3. CRIMINAL LAW (§ 304) — EVIDENCE — JUDICIAL NOTICE — GAMES OF CHANCE.

In absence of a showing that a game of poker was played with cards, the Supreme Court will not take judicial notice that poker is a game of chance.

4. GAMING (§ 94) — PROSECUTION — PROOF.

Where, in a prosecution under Rev. St. 1909, § 4750, making it a felony to set up or keep any gambling table or device adapted and designed for playing any game of chance for money, and induce or permit any person to bet or play at or upon such table, the information alleged that accused set up and kept a gaming table consisting of a round table covered with cloth upon which dice and cards were used, and did unlawfully induce, etc., others to play thereat, etc., proof that a game of poker was played upon an ordinary dining table, and that accused acted as banker and took a "rake-off," without showing the use of playing cards or other paraphernalia, would not sustain a conviction.

5. GAMING (§ 74) — PROSECUTION — "GAMING TABLE" — PROOF.

In order to convict for setting up and keeping appliances with which games of chance with cards are played contrary to Rev. St. 1909, § 4750, making every person guilty of a felony who sets up and keeps any gaming table designed for playing any game of chance, and induces or permits any person to bet thereon, the state must prove that a table or other appliance was furnished, and playing cards were used in playing games of chance thereon, that money or property was bet on such games by persons induced or permitted to pay thereat, and that accused had at the time the management of such paraphernalia.

6. CRIMINAL LAW (§ 805) — TRIAL — INSTRUCTIONS.

An instruction, in a prosecution for gaming, may refer to other instructions to define the kind of gambling device alleged to have been used.

Appeal from Circuit Court, Monroe County; William T. Ragland, Judge.

George F. Solon was convicted of gaming, and appeals. Reversed and remanded.

Prosecution under section 4750, R. S. 1909, which comes up upon an appeal by defendant from the circuit court of Monroe county. The information is in two counts, the first of which charges defendant with setting up and keeping a certain gaming table and gambling device, to wit: "One crap table, commonly so called, upon which table dice were used." But, since defendant was acquitted upon this count, it need not be further referred to herein. The second count, omitting formal parts and caption, is as follows: "And Ezra T. Fuller, prosecuting attorney of and within and for the county and state aforesaid, upon his official oath aforesaid further informs the court that at and in the county of Monroe and state of Missouri, on or about the 9th day of December (A. D. 1911, and on divers other days prior thereto), George F. Solon did then and there unlawfully and feloniously set up and keep a certain gaming table and gambling devices, to wit, a round table covered with cloth, upon which dice and cards were used, which gaming table and gambling devices were adapted, devised, and designed for the purpose of playing games of chance for money and property, and did then and there unlawfully and feloniously induce, entice, and permit Edgar W. Guilford, Edward Crawford, and other persons whose names are to this prosecuting attorney unknown to be and play at and upon and by means of said gambling table and gambling devices, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." Upon a trial had at the March term, 1912, of the said Monroe circuit court, defendant was found guilty by a jury on the second count, and his punishment assessed at imprisonment in the county jail for a term of six months. From this conviction, defendant, after filing motions for a new trial and in arrest, prosecutes this appeal.

The facts as developed by the testimony seem fairly to be about as follows: The defendant, a young man of about the age of 20 years, is a son of a Mrs. Solon, who at the times complained of was the keeper of a certain hotel in Monroe City, known as the Monroe Hotel. The building in which said hotel was operated seems to have had three stories, the second and third of which only were used for hotel purposes. The defendant seems to have been acting for his mother as hotel clerk. As such clerk, during all the times mentioned in the testimony, defendant, when on duty, had charge of all of the guests' rooms in this hotel. It will be noted that the information charges the offense to have been committed on about the 9th of December, 1911. It is in evidence that on the 9th day of December, 1911, one Dr. Guilford, having occasion to see a Mr. Crawford, also a witness in the case, went to the Monroe Hotel, and ascertained that Crawford was in a certain room of the hotel. Guilford describes his meanderings in seeking Crawford as follows: "We went up a flight of steps to the hotel office; up another flight of stairs to the third floor; back through a hallway — the back portion of which was dark — through a dark room into another room, and in the northeast corner of the third story in the rear of the building." There the witness saw the defendant with two other young men engaged in playing with dice for money. Two dice appear to have been used. Dice were being "shot" upon a table described by the witness as a "round dining room table covered with cloth, and about five feet in diameter." The witness Guilford, after observing the game for a time, was asked by defendant to join therein, and ultimately did so. Being asked what the defendant was doing there at the time, witness Guilford replied: "He did just the same as the rest of the others, shot dice and put up his money on the game." Some considerable money seems to have been bet by defendant and the other three persons in this game, which continued until some sort of a difficulty arose between the defendant and the witness Guilford, which resulted in the game for the time being broken up. Another witness, Crawford, who seems to have been present at all the times complained of by the state in both counts of the information, testifying for the state touching the charges contained in each count, says: "Dr. Guilford came up and sat on the bed, sat there probably two or three minutes, something like that. I think I had the dice in my hand at the time. I lost out, as we call it, and doctor took the dice and shot four or five rolls, and what we call craps. He threw craps each time I think. The defendant won in those games. I don't have any recollection of the defendant making any charges or taking anything for the `shots' from those who participated in the game. I have no recollection of him making any charges on shots. I have been in that room other than on December 9, 1911. We played back in that room on that table with the defendant. He was what we term banking the game; taking a `take-off.'" After offering the testimony of other witnesses, which testimony had reference largely to the location of the hotel, the rooms thereof, and other matters not pertinent to this inquiry, the state announced that it rested. Thereupon the defendant filed a demurrer to the evidence in the form of an instruction to be given by the court to the jury that, under the law and the evidence, their finding on the second count of the information should be for the defendant. Before any action was taken by the court on this demurrer, the state announced that it desired to withdraw its announcement of rest and recall witness Crawford. This the court permitted the prosecuting attorney to do, adding, as the record shows, that this action was taken "before any point was made or presentation of the matter," except, as appears by inference, the mere filing of the demurrer. Upon being recalled, the witness Crawford again testified in substance as follows: "Q. Ask you whether you were ever invited to this room in question? A. I would not consider it a particular invitation, just in a way. Defendant said he had `a little game up there once in a while, if I ever done the like come around,' something to that effect. By `up there' he had reference to up in the hotel. I believe I have played poker twice in that room in that hotel. Defendant was there each time. He was playing poker. He made change and took the take-off. This was some time in December, 1911. I don't remember the first time I went to this room. It has been so long I could not recall who was there."

The above is the substance of the testimony for the state so far as the facts are pertinent to this prosecution, and so far as they refer to the acts done by the defendant. Defendant did not testify in his own behalf and called but one witness, his mother, whose testimony, in the...