State v. Washington

• Decision Date: 09 May 1912
• Citation: 146 S.W. 1164,242 Mo. 401
• Parties: THE STATE v. THEODORE WASHINGTON, Appellant
• Court: Missouri Supreme Court

146 S.W. 1164

242 Mo. 401

THE STATE v. THEODORE WASHINGTON, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. W. A. Taylor Judge.

Reversed and remanded.

John A Gernez and Thos. J. Rowe, Jr., for appellant.

(1) Plea in abatement should have been sustained, as the methods of the jury commission of the city of St. Louis are beyond the powers entrusted to him by the statutes. As a consequence, the grand jury that returned the indictment is an unlawful body, the defendant is deprived of his liberty without due process of law, has been denied the legal protection of the law and his privileges as a citizen have been abridged, violating the State and Federal Constitutions. (2) Instruction number 1 is erroneous, as it left out the element of "reasonable doubt" in the jury's consideration of the evidence and in their finding of a verdict. It cannot be cured by a subsequent instruction; and even if it could, it has not been. State v. Helton, 137 S.W. 988. (3) Where an indictment in one count charges more than one offense, a general verdict finding the defendant guilty, without specifying of which offense, is insufficient to support a judgment of conviction. State v. Burke, 151 Mo. 136; State v. Grossman, 214 Mo. 233; State v. Rowe, 142 Mo. 439; State v Jones, 168 Mo. 398; State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401.

Thos. B. Harvey also for appellant.

(1) The trial court's general instruction defining the offense was erroneous. It authorized the jury to convict if they should find that defendants had set up and permitted gambling upon either or both of the alleged devices within three years. The prosecution offered evidence tending to show that gambling had been permitted on both the poker and the crap table; and if some of the jurors found that gambling had occurred on one table, and the balance of the jurors had found that gambling had occurred on the other table, this instruction would authorize a conviction under such circumstances. In other words, the jury need not be unanimous as to either table. Such, of course, would not be sufficient. There must be unanimity of the jury that defendants had set up and permitted gambling on a certain device. (2) The indictment identified the criminal transaction by naming the players and the date; but the instruction authorized a conviction if any one, though not named in the indictment, had been permitted to gamble within three years before the finding of the indictment. Time is not of the essence of this offense and need not be proved as laid; but if that means of identification is abandoned, so much the greater the necessity of identifying the particular occurrence for which the grand jury had indicted, by the players whom they alleged had participated. (a) Whenever the crime alleged against a defendant is based upon a transaction between him and another, or upon an act of the defendant against another, then it is necessary to name that other person. The pleader recognized this fundamental rule of procedure and alleged the names; but the instruction told the jury that the allegations were sustained if any person had been permitted to play. The fact that the indictment alleged that others who played on the occasion were "unknown," would not dispense with proof of at least one or more of those who were named. State v. Miner, 233 Mo. 331. (b) But even if it was not necessary to allege the names of the players, yet being alleged, the allegation could not be rejected as surplusage; for it is the chief element of the offense that the keeper of the device should permit persons to gamble by means thereof, and therefore it was material and necessary to allege that persons played, and any naming of those persons became a material averment because descriptive of that which was material. State v. Samuels, 144 Mo. 72; State v. Harris, 209 Mo. 436. (3) The instruction should have confined the attention of the jury to one of the devices alleged in the indictment, or should have required them to state in their verdict of which device they convicted him.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) Appellant alleges in his motion to quash that the grand jury that returned the indictment was composed of persons of the Caucasian race; that appellant is of African descent, a citizen of Missouri and of the United States; that the indictment was returned in the circuit court of the city of St. Louis, and that about ten per cent of the population of the city of St. Louis are negroes and many of them qualified in law by their intelligence and standing in the community, to perform grand jury duties, and the fact that persons of the Caucasian race composed said grand jury was not the result of inadvertence and accident, but was done purposely and intentionally. The summoning and impaneling of jurors are directory only. State v. Jennings, 98 Mo. 493; State v. Mathews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. Pitts, 58 Mo. 556. The record shows that the list of grand jurymen was selected in the usual way. State v. Jackson, 167 Mo. 291; R. S. 1909, secs. 7341, 7342. Section 5068, Revised Statutes 1909, provides that no challenge to the array of grand jurors, or to any person summoned as a grand juror except for those causes mentioned in section 5067. This court has held that the only disqualifications that can be urged are those enumerated in this section. State v. Crane, 202 Mo. 54. There is no showing in the record that any grand juror was excluded because he was a negro, or for any other reason. The grand jury was regularly impaneled and sworn and was a legal grand jury. State v. Glasscock, 232 Mo. 278. (2) That a certain house or other place was maintained or kept as a gaming house, may be shown by proof of its general reputation in the community, by the reputation of its inmates and frequenters as professional gamblers, and by the fact that gambling paraphernalia was found there. Underhill on Crim. Ev. (2 Ed.), sec. 475, p. 774; State v. Mosby, 53 Mo.App. 571. (3) Appellant contends that the verdict is indefinite and uncertain and, consequently, void, stating that the indictment charges more than one offense, and that the verdict is a general one. If appellant's contention were true, then his argument might be possible, but the fact remains that the indictment is only in one count, charged upon one section of the statute, and has been held many times by this court to constitute but one offense. State v. Hall, 228 Mo. 456; State v. Cannon, 232 Mo. 205; State v. Mathis, 206 Mo. 604; R. S. 1909, sec. 4750; State v. Baldwin, 214 Mo. 306; State v. Bluhely, 184 Mo. 187.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

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 number 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...