State v. Washington

• Decision Date: 09 May 1912
• Citation: 146 S.W. 1164
• Parties: STATE v. WASHINGTON.
• Court: Missouri Supreme Court

146 S.W. 1164

STATE v. WASHINGTON.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. INDICTMENT AND INFORMATION (§ 137)— MOTIONS TO QUASH—GROUNDS.

Under Rev. St. 1909, § 5067, providing that any person held to answer a criminal charge may object to the competency of any person drawn to serve as a grand juror before he is sworn, on specified grounds, and section 5068 providing that no challenge to the array or to a person summoned as a grand juror shall be allowed in other cases, an indictment cannot be attacked on the ground of incompetency of a grand juror or irregularity in selecting the grand jury, where the person indicted was not at the time the grand jury was impaneled under arrest or held to answer a criminal charge.

2. CRIMINAL LAW (§ 1116)—APPEAL—RECORD — PRESERVATION OF ERRORS FOR REVIEW.

An assignment of error in overruling a motion to quash an indictment cannot be considered where the motion is not preserved in the record.

3. CRIMINAL LAW (§ 806)—TRIAL—INSTRUCTIONS —REPETITION.

Where the court fully covers the question of reasonable doubt in one instruction, a failure in another instruction to require the incriminatory facts to be found from evidence showing guilt beyond a reasonable doubt was not error.

4. CRIMINAL LAW (§ 881)—TRIAL—VERDICT —UNCERTAINTY.

An instruction on a trial for setting up and keeping gaming tables that, if the jury found that accused had set up and kept a crap table and a poker table, or either of them, they should find him guilty, was reversible error in connection with a general verdict of guilty, as charged, since it could not be told whether the jury found the accused guilty of setting up and keeping both tables or only one, or which one, or whether the jury was unanimous as to which one he had set up and kept.

Appeal from St. Louis Circuit Court; W. A. Taylor, Judge.

Theodore Washington was convicted of crime, and he appeals. Reversed and remanded.

Thos. B. Harvey (Jno. A. Gernez and T. J. Rowe, Jr., of counsel), for appellant. The Attorney General and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

At the October term, 1910, of the circuit court of the city of St. Louis, an indictment was returned against appellant and Ollie Jackson, charging them with having set up and kept divers gaming tables and gambling devices. Appellant was granted a severance, and at the February term, 1911, of said court was tried, convicted, and sentenced to imprisonment in the penitentiary for a term of two years. He appealed to this court.

The state introduced evidence tending to show the following facts: The building designated as No. 2309 Chestnut street in the city of St. Louis, a three-story brick building, had been occupied for several years by the Modern Horseshoe Club. On the first floor there was a reception hall, parlor, barroom, and buffet, all elaborately furnished. In the basement, which was reached by a stairway at the rear of the barroom, was a large room in which there were two pool tables. A poker game was operated regularly in the barroom, and a crap game in the basement; the pool tables being used as crap tables. Both games were played for money by the frequenters of the rooms. They were not "bank" games, but were games in which the players made the wagers with each other. There was a man in charge of each game, however, who collected from the players a "take-off" for "the house." At each of the crap tables the man in charge of the game, at the time each bet was made, would take out of the money wagered five cents or more according to the amount of the bet. When the crap games were running, the defendant frequently went to the pool tables, counted the money taken in by the man in charge, and took part of the money upstairs with him. This frequently happened several times the same night. He also played at the poker tables, and in one instance took charge of the "kitty" that belonged to "the house" and carried it away from the poker table. When the games were in progress, the defendant was in constant attendance around the premises, watching the games and preserving order. A witness who had previously been employed at the club as a bartender testified that the defendant was the manager of the club and sometimes paid the witness his wages.

The defendant testified in his own behalf as follows: He was employed by the Modern Horseshoe Club and received a regular salary for his services. His duties were to ascertain whether or not people entering the building were members of the club, see that members coming into the rooms were seated and served, attend to the books and records, and look after the interests of the club. He had no connection with the gambling games, had no control over them nor anything whatever to do with them, and never received any profit or benefit from them. He never went to the basement room for money except to have bills changed in order to make change for a customer at the bar. The defendant's own testimony was the only evidence offered by him.

1. Appellant filed two motions to quash the indictment, each of which was in turn overruled, and error is assigned to such action of the court upon each motion.

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