State v. Stolberg

• Decision Date: 04 February 1928
• Docket Number: 27849
• Parties: The State v. Kennett Stolberg, Appellant
• Court: Missouri Supreme Court

2 S.W.2d 618

318 Mo. 958

The State v. Kennett Stolberg, Appellant

No. 27849

Supreme Court of Missouri

February 4, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

William E. Fish for appellant.

(1) If there ever was a case in which the police persuaded and entrapped the defendant in committing a crime, we believe this to be one of them, for the officer testified that he went there to catch this man and arrest him, that he did not expect to win or lose as he never inquired whether the horse won or lost. (2) Does this statute on horse-racing charge any criminal offense? It was evidently passed to stop gambling on a horse race. The words of the information charge that bets were made on the power, skill, and endurance of a horse; it does not charge that the element of chance entered. Without the element of chance, making a bet on the skill and power of endurance of a horse or man is not an offense. (3) The general rule is that where the criminal intent originates in the mind of the entrapping person and the defendant is lured into the commission of the offense charged in order to prosecute him therefor, no conviction can be had. United States v. Healy, 202 F. 349; United States v Certain Quantities of Intoxicating Liquors, 290 F. 824; Woo Wai v. United States, 223 F. 412; United States v. Echols, 253 F. 862; State v Waghalter, 177 Mo. 677; Williams v. State, 55 Ga. 395.

North T. Gentry, Attorney-General, and Claude Curtis Special Assistant Attorney-General, for respondent.

(1) The information filed is in the language of the statute and is sufficient. State v. Brown, 304 Mo. 78; State v. Dewitt, 152 Mo. 76; State v. Edgen, 181 Mo. 582; Sec. 3536, R. S. 1919; State v. Cummings, 248 Mo. 509. (2) The court committed no error in overruling defendant's demurrer and refusing his offered instructions numbered 1 and 2. The evidence of the police officers was competent and was sufficient to sustain the charge against the defendant. State v. Seidler, 267 S.W. 424; State v. Feldman, 150 Mo.App. 120; State v. Lucas, 94 Mo.App. 120; State v. Quinn, 170 Mo. 176, 179; State v. Chappell, 179 Mo. 332; State v. Richie, 180 S.W. 2; Shepard v. United States, 160 F. 584; Grimm v. United States, 156 U.S. 604; State v. Cummings, 248 Mo. 509.

Ragland, J. Graves, Gantt and Atwood, JJ., concur, Atwood, J., in a separate opinion; Walker, C. J., concurs in all except what is said with reference to Ex parte Fleming v. Wengler; Blair, J., concurs in the result; White, J., dissents.

OPINION

RAGLAND

Appellant was convicted of the felony of being the custodian and depository of a bet placed upon a trial and contest of skill, speed and power of endurance between two beasts, towit, a horse race, as defined by Section 3536, Revised Statutes 1919. The jury fixed the punishment at a fine of $ 1000. After unsuccessfully moving for a new trial appellant was sentenced on the verdict and was thereafter granted an appeal to this court.

For a statement of the facts, which are brief, we adopt with some slight modifications and additions that made by the Attorney-General.

The evidence tends to show that on May 8, 1925, one Oliver J. Wunderlich, a police officer in St. Louis, Missouri, went to a cigar store at 1728 Olive Street, where he met the defendant; that said officer went into said store to place a bet on a horse race; that he did place two dollars on a horse named Swope entered in the fifth race at Pimlico, Maryland; one dollar was placed for Swope to win and one dollar for him to place; that the defendant Kennett Stolberg took the money, put it in his pocket and gave Wunderlich a written memorandum as follows:

"Swope

"1 W 1 Pl

"J. H.;"

that the memorandum was made in duplicate; and that Stolberg kept one copy and gave the other to Wunderlich.

On cross-examination of Wunderlich, who testified as a witness for the State, it was shown that he went into defendant's store to place a bet in order to catch the defendant violating the law; that after the bet was made two officers went in and took the money and arrested the defendant; that Wunderlich did not give his right name when he went in to place the bet; and that he went in under the instructions of Sergeant Mulcahy to entrap the defendant.

The State put on the witness stand the two police officers who arrested the defendant on the afternoon of May 8, 1925; they testified that they were in the vicinity of the cigar store while Wunderlich was in there and were awaiting the result of his visit; that as soon as he came out and told them he had placed a bet they went in and arrested Stolberg, and upon searching him found two one-dollar bills which had been marked by them and which they had directed Wunderlich to place as a bet. These officers identified in court two one-dollar bills placed as a bet with defendant and also the memorandum given by the defendant to the officer who placed the bet. They testified further that they found in the defendant's store a marked race-form sheet, showing among other things; the different races that would be run at Pimlico that day; the times which the several races would start; the entries in each race; the track records of each of the several horses entered; and the conditions of both weather and track. Mulcahy testified that there was also on the race-form sheet penciled memoranda with reference to "the proper odds on the race; the name of the jockey that may ride the horse; also the condition of the track." He further testified that in addition to the marked race-form sheet he and the officer who was with him found thirty-seven other tabs (memoranda) on horse races.

The defendant showed on cross-examination that the bet in question was not placed with the idea of winning any money, but merely for the purpose of entrapping the defendant.

Defendant offered no evidence, but stood upon his demurrer.

Appellant seeks a reversal of the judgment of conviction on the sole ground that he was entrapped and lured into the commission of the alleged offense by the police officers in order that he might be prosecuted therefor. He invokes a rule frequently applied by the Federal courts to this effect: Where the officers of the law have incited a person to commit the crime charged, and lured him on to its consummation with the purpose of arresting him, the law will not authorize a verdict of guilty. But he admits that, "when it appears that the genesis of the idea, or the real origin of the criminal act, sprang from the defendant, and not from the officers," the rule is without application. Now the evidence as a whole very clearly shows that on the 8th day of May, 1925, appellant was engaged in making a "book" on the races that were to be run on that day at Pimlico, Maryland, and that neither Wunderlich nor any other police officer had incited him thereto, because he had made, and registered, at least thirty-seven other bets on the races before Wunderlich came into his place of business. The transaction with Wunderlich was conducted merely as a matter of ordinary routine. That appellant's contention is without substance is obvious.

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