State v. Turlington

• Decision Date: 25 June 1918
• Docket Number: No. 2317.,2317.
• Citation: 200 Mo. App. 192,204 S.W. 821
• Parties: STATE v. TURLINGTON.
• Court: Missouri Court of Appeals

204 S.W. 821

200 Mo. App. 192

STATE v. TURLINGTON.

No. 2317.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

J. A. Turlington was convicted of permitting a punch board to be operated in his store, and appeals. Affirmed.

Hall & Billings and Tribble & Byrkit, all of Kennett, for appellant.

BRADLEY, J.

Defendant was charged by information of the prosecuting attorney of Dunklin county with violating section 4753, R. S. 1909, by permitting a much board alleged to be a gambling device Lo be used or operated in his store building. Upon trial before the court and a jury defendant was found guilty and fined $50. Unsuccessful in the usual motions for a new trial and in arrest, he appealed to this, court.

The sufficiency of the information is challenged. Omitting formal Darts, the information is as follows:

"That J. A. Turlington * * * did unlawfully permit a certain gambling device called a punch board, designed and used for the purpose of playing games of chance for money and property, to be used for the purpose of gambling in a certain building there situate, and under the control of him,:he said J. A. Turlington," etc.

It is contended that the information is so general in its charges that it does not sufficiently advise the defendant of the offense for which he must go upon trial. In other words, it is contended that the information should describe the gaming characteristics of the alleged gambling device. Appellant cites State v. Wade, 207 Mo. 249, 183 S. W. 598, to support his contention regarding the information. The information there challenged was under section 4750, where a number of specific gaming devices are named, followed by a general denouncement of any gaming device of whatever kind or pattern. The information there was for an offense falling within the general provisions of the statute, and wag charged in language similar to that in the information in the case at bar. The information there was held insufficient because there was no allegation bringing it within the class of the enumerated devices. Following the well-known rule of ejusdem generis, it was held in the Wade Case that an information charging an offense embraced within the general provisions of section 4750 must contain sufficient averments to show that the offense charged is within the class of offenses specifically named. Furthermore, it is pointed out in the Wade Case that an information containing the averments there challenged would be sufficient under section 4753, known, with reference to gaming devices, as the misdemeanor section. So to our mind the Wade Case, instead of supporting defendant's contention conclusively determines that point against him.

The information charges the offense in the language of the statute, and follows approved forms and precedents, and, we think, is sufficient. State v. Wade, supra; State v. Leaver et al., 171. Mo. App. 371, 157 S. W. 821; State v. Howell, 83 Mo. App. 198; Kelly's Crim. Law & Pr. (3d Ed.) 953.

The point is made that lie manner in which defendant conducted the punch board was no offense under the law, and that his instruction in the nature of a demurrer to the evidence should have been given. The evidence shows that the punch board was a board in which there were a great many holes. In each of these holes was a small strip of paper containing a number. These holes were covered, but the cover was so designed as to indicate exactly he location of each hole. The prizes were knives and post cards. The knives ranged in value from 50 cents to $1.50, and the post cards were worth 3 cents each. A small wooden pin was used to punch the covering of the hole. Five cents a punch was charged, and the number on the slip of paper in the hole punched indicated whether a post card or a knife was the reward, and, if a knife, it indicated what knife. There were no blanks. The purchaser of a punch got a post card or a knife. When the board was first set up a "punch" was sold for 5 cents; but, being advised that there might be less taint of a gamble or game of chance if the post card was sold in advance, this method was adopted. The post card was sold for 5 cents, and the purchaser was then entitled to a punch. If he got a knife, he was a post card ahead, as compared with original system. The defendant would buy back for three cents the post card if the purchaser desired to sell it. The defendant testified that the post card cost 3 cents, and that he bought back a number of them. So in any event the defendant was 2 cents ahead if the purchaser who got a post card did or did not sell it back. The slips of paper in the holes calling for post cards were far in excess of those calling for knives so that when the entire board was punched there was a margin of gain in favor of the defendant.

Clearly we think such board falls within the class of gambling devices. The incentive prompting any one to take a punch was the chance of getting something of more value than the cost of the chance. The amount of the winner's gain or loser's loss would make no difference, if the chance to win more than was invested was present. It is this chance to get something of more value than the amount invested that characterizes the device as a gambling one. Had the post card which was always drawn, except when a prize of more value was drawn, been in fact of the value of five cents, so that there would have been no chance for the customer or patron to lose, this would not purge the enterprise of its chance characteristics, because the chance to win more than invested...