State v. Wade

• Decision Date: 01 March 1916
• Docket Number: No. 18711.,18711.
• Citation: 267 Mo. 249,183 S.W. 598
• Parties: STATE v. WADE.
• Court: Missouri Supreme Court

183 S.W. 598

267 Mo. 249

STATE v. WADE.

No. 18711.

Supreme Court of Missouri.

March 1, 1916.

In Banc. Appeal from Criminal Court, Buchanan County; Thomas F. Ryan, Judge.

Richard Wade was convicted of keeping a gaming table, and he appeals. Reversed and remanded.

On the 2d day of March, 1914, the prosecuting attorney of Buchanan county filed in the criminal court of that county an information, which, omitting formal parts, is as follows:

"That at said county Richard Wade, at 118½ North Fifth street, in the city of St. Joseph, * * * did then and there willfully, unlawfully and feloniously set up and keep a certain table and gambling device commonly called a crap table, which said crap table was then and there and on said other days and times a gambling device 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 certain persons, to wit, * * * to bet and play at and upon a game played on and by means of such gambling device."

On this information defendant was tried and convicted, and his punishment assessed at four years' imprisonment in the penitentiary. The judgment was affirmed by Division 2, but, owing to the dissent of FARIS, J., and upon defendant's application, the cause was transferred to court in banc.

The evidence adduced by the state tends to prove that defendant, as tenant, occupied and had under his exclusive control the basement of the premises designated 118 North Fifth street, in the city of St. Joseph. The particular basement room in which the alleged gambling device was set up and kept was under a restaurant fronting on Francis street, the sole available entrance thereto being under a barber shop at 118 North Fifth street. From this initial point of entrance a tunnel or underground passageway led to the room in question. The tunnel was equipped with a series of doors, which closed automatically through the operation of certain convenient and ready devices. A system of electric signals had been duly installed in order to warn of the approach of undesirable persons. In the room, besides some other furniture and fixtures, were two pool tables, on each of which was chalked off what is referred to in the evidence as a "crap game lay-out." The evidence also discloses that in this room was a full equipment for pool tables, such as racks, balls, and cues. The "crap game lay-out" is described as certain chalk marks with numbers thereon at different points.

On the 7th of February, 1914, when this room was raided by the officers, 30 or 40 persons were found in the room, some of whom were engaged at the time in playing what is called the "game of craps," which is described as a game played with dice. At that time there was about $300 in money found on the tables. One table was in charge of and being operated by Frank Dorsal, and the other by William Garnett, both of whom were in the employ of defendant. Defendant was at the cigar counter in another part of the room.

A deputy sheriff, who had been a police officer for 14 years, and two of defendant's employés, testified that the premises and the entrance thereto were commonly known as 118½ North Fifth street. The evidence also discloses that defendant's mail, and that of his employés, in accordance with his directions, was addressed to 118½ North Fifth street, and, when arrested, defendant gave this number as his address.

The state's witnesses testified to their knowledge and familiarity with what is commonly known as a "crap table," and stated that the pool tables with the "crap lay-out" thereon were not such tables. All witnesses for the state testified, however, that the game of craps was, in point of fact, played on such tables.

The defendant offered some evidence tending to show that there was no such number as 118½ North Fifth street in the city of St. Joseph, and that if there were such a number it referred to the second story of the building at 118 North Fifth street, and not to the basement in which defendant was conducting his business.

Defendant also offered a picture of a table which had been identified by the state's witnesses as a correct representation of the table commonly known as a "crap table," and this discloses no similarity between such a table and the one which the witnesses described as being kept by defendant.

Kay G. Porter, Charles F. Strop, and Eugene Silverman, all of St. Joseph, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

REVELLE, J. (after stating the facts as above).

I. The record discloses several assignments of error, the most important being the challenge to the sufficiency of the information. In the absence of a valid and sufficient charge a judgment cannot stand, and, under such circumstances, the question of a defendant's guilt or innocence is not food for the judicial mind. The organic law entitles every person charged with crime to be informed of the nature and cause of the accusation against him, and, in keeping with the spirit of this salutary and fundamental principle of justice, courts have evolved an inflexible rule that in criminal pleading nothing material can be left to intendment or implication. Where a crime is created by statute, the charge must be such as to specifically bring the accused within the material words thereof. One is not required to wait until the state's evidence is in to know whether he is charged with a crime. This much at least must appear from the allegations of the indictment or information—indeed, the state cannot prove what it has not properly alleged, and particularly can it not supply by incompetent evidence an absent allegation in the charge. We do not allow this even in civil pleading and practice, although, in such cases, we have not the same constitutional inhibition as we have in criminal cases.

The information in this cause is bottomed on section 4750, R. S. 1909, which is as follows:

"Every person who shall set up or keep any table or gaming device commonly called A B C, faro bank, E O, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device or on the side or against the keeper thereof, shall, on conviction, etc."

It will be observed that the Legislature first specifically names and denounces certain tables and gambling devices, thus giving them a legal signification, and then proceeds, in general terms, to level its pronouncement against "any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device," etc.

In construing statutes we have so frequently applied the familiar rule of ejusdem generis that we would not now be warranted in departing therefrom. We have said this doctrine meant that when an enumeration of certain specified things in a statute is followed by general words or phrases, such words or phrases of general description shall be deemed to mean things of the same class and kind, and not include things wholly different from those specifically mentioned, or otherwise expressed: That when general words follow particular words they must be construed as applicable only to the things of the same general class as the particular words by which they are preceded.

Although, as said by Judge Faris in State v. Solon, 247 Mo. 672, loc. cit. 683, 153 S. W. 1023, 1026, when discussing the present section, "Clearly this section has been by construction strained almost to the breaking point;" nevertheless, this court has, at all times, declared, in determining the devices to which it is applicable, that it recognized the ejusdem generis rule.

In State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975, Judge Gantt said:

"Craps are not named, and therefore do not have a legal signification within the meaning of the statute, but if prohibited at all must come within the general prohibition of the section. Conceding that all other gambling tables and devices not specifically named must, under the doctrine ejusdem generis, be of the same general class with those devices specifically named, we think there can be no doubt that * * * a crap table is of that class."

In State v. Locket, 188 Mo. loc. cit. 422, 87 S. W. 470, Judge Fox, in passing upon the same question, approvingly quotes this language from Judge Gantt.

In State v. Gilmore, 98 Mo. 206, 11 S. W. 620, this court held that a pack of playing cards, although used for playing games for money or property was not a gambling device within the meaning of this section; the court tersely stating that any other construction is condemned by the rule of ejusdem generis.

In State v. Lemon, 46 Mo. 375, the statute was declared inapplicable to a horse race; and in State v. Bryant, 90 Mo. 534, 2 S. W. 836, it was held that a gun and a target were not of a kindred nature and similar kind to those enumerated, and were therefore not within the purview of the act.

In the recent case of State v. Solon, 247 Mo. 672, 153 S. W. 1023, it was held that the court will not take judicial notice that poker is a game of chance, and that where there is no evidence that the game of poker alleged to have been played on the table was played with cards and that chips or other gambling paraphernalia were used, a demurrer to the evidence should be sustained, since it is not sufficient to show that a game of poker was played upon an ordinary hotel dining table, and that de...