State v. Stewart.
| Decision Date | 11 September 1933 |
| Docket Number | No. 17728.,17728. |
| Citation | 63 S.W.2d 210 |
| Parties | STATE OF MISSOURI, RESPONDENT, v. ROY STEWART ET AL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Holt County. — Hon. Guy B. Park, Judge.
REVERSED AND REMANDED.
No brief for State.
John E. Heffley and K.D. Cross for appellants.
R.B. Bridgeman, of former Counsel, for appellants.
At the May Term, 1931, of the circuit court of Holt County, Missouri, the defendants were jointly charged by information filed by the prosecuting attorney of said county with playing at a certain game of chance commonly called "rumme" with cards for money. On the twentieth day of May, 1931, during said term, the case was tried, resulting in a verdict of guilty as to each of said defendants and the assessment of a fine of forty dollars each against them by the jury. The information is under Section 4303, Revised Statutes 1929, and is as follows: (Omitting caption) "Comes now James H. Pettijohn, Prosecuting Attorney within and for the county of Holt, in the State of Missouri and informs the court that Roy Stewart, John King, Gug Housewirth, Lester McNemee, Harold Rostock, and Harold Sipes, on the 24th day of April, 1931, at said County of Holt, did then and there unlawfully play a game of chance, commonly called "rumme," for money, with a gambling device, to-wit, a pack of cards used and adapted for the purpose of playing games of chance for money and property, against the peace and dignity of the State."
The section of the Statute upon which the information is based provides: "If any person shall play at any game whatsoever for money, property or gain with cards, dice or any other device which may be adapted to and used in playing any game of chance or in which chance is a material element or shall bet or wager on the hands or cards or sides of such as do play as aforesaid, every such person shall be deemed guilty of a misdemeanor, and upon conviction be punished by a fine of not less than twenty-five nor more than two hundred dollars."
The evidence for the State is based entirely on the testimony of Sheriff Gelvin of Holt County and of his deputies, Graham and Lacy. Gelvin testified that on the twenty-fourth day of April, 1931, together with his deputies, he visited the Rostock shop or building, situate just across the street east of the court house in Oregon in Holt County where he found the six defendants, appellants herein; that he approached the building and, reaching the front door, saw the defendants through a large glass in the door sitting at a table inside with ordinary playing cards in their hands and with cards and money upon the table before them; that he took hold of the door and, finding it locked, told the defendants to open it; that he broke the glass in the door and one of his deputies reached in and unlocked it and he and his deputies entered the room; that the defendants at that time were grabbing for the money upon the table and knocked some of it off on the floor and he picked up some of the same; that he also found common playing cards in the room; that, as he and his deputies entered the room, one of the defendants threw something to the floor; that the time of his visit was around seven o'clock in the evening. He further testified that he did not see any of the defendants lay or play any card upon the table, nor did he see any defendant bet any money upon any game, nor did he see any money change hands. His deputies testified practically to the same effect. There was no evidence that the game, if any, being played, was "rumme" or what was commonly known as "rumme," nor was it otherwise characterized. Upon the part of defendants, defendants Housewirth and Sipes were sworn as witnesses; and each gave evidence denying that any money was bet by any of defendants or that any game was played by any of them for money. They further testified that four of them were engaged in a game, without any money being placed or bet thereon, and that two of the defendants had not played at all. One of said defendants, however, upon cross-examination, spoke of the money on the table.
At the close of the State's case, the defendants requested an instruction directing a verdict of not guilty, which was refused by the court, and again at the close of all the evidence asked a similar instruction which was refused. The court, thereupon, at the request of the State, gave instructions numbers 1-4 inclusive and refused instruction marked "A" asked by the defendants and submitted the case to the jury.
In the instructions given by the court, the court told the jury that, if it should find from the evidence that defendants played a game of chance with cards for money, they should find defendants guilty as charged in the information without requiring that it should also find from the evidence that the game so played was "rumme" or what was commonly known as "rumme."
In the instructions given, the court submitted the case to the jury on the theory that, if it found from the evidence that defendants played at any game of chance with cards for money, it was sufficient to authorize a verdict of guilty, as charged in the information, without regard to whether the evidence showed it to be a game of "rumme" or a game commonly called "rumme" as charged therein.
Defendants by their refused instruction "A" sought to have the court require the jury to find from the evidence that the game played, if any, was "rumme" or what was commonly called "rumme" before it could convict the defendants. This theory was rejected by the court.
The jury returned a verdict of guilty as charged in the information as to each defendant. In due time, defendants filed a motion for a new trial, which was overruled by the court; and judgment thereupon was pronounced against them upon the verdict, from which they have duly appealed to this court.
1 — The appellants have filed a brief herein, assigning numerous errors upon the trial relating chiefly to the giving and refusing of instructions and to the insufficiency of the evidence to support the charge made in the information and the verdict and to the insufficiency of the allegations of the information to constitute a valid charge against them. The respondent has not favored us with a brief.
2 — It is complained that the information having charged the defendants with unlawfully playing a game of chance with cards commonly known as "rumme" for money should have further alleged a description of the game of "rumme," sufficiently to show that it comes within the prohibition of the statute. Section 4303 of the statute, under which the information is filed, provides: "If any person shall play at any game whatsoever for money — with cards, dice, or any other device which may be adapted to or used in playing a game of chance — shall be deemed guilty of a misdemeanor." The information is, therefore, sufficient. If the device used had been...
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