State v. Williams

• Decision Date: 05 June 1925
• Docket Number: 26118
• Citation: 273 S.W. 1069
• Parties: STATE v. WILLIAMS
• Court: Missouri Supreme Court

273 S.W. 1069

STATE v. WILLIAMS

No. 26118

Supreme Court of Missouri, Second Division

June 5, 1925

Rehearing Denied July 2, 1925.

J. H Taylor, of Chillicothe, and C. B. Burns, of Brookfield, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The information, based on section 3537, R. S. 1919, in substance, charges that the defendant on or about February 2, 1924, feloniously set up and kept a crap table on which dice were thrown and used; that said table was adapted, devised, and used for the purpose of playing games of chance for money and property; and that the defendant did then and there entice and permit persons, whose names are unknown to the prosecuting attorney, to bet and play at and upon and by means of said gaming table and gambling device, against the peace and dignity of the state. On a trial to a jury the defendant was found guilty and his punishment assessed at imprisonment in the penitentiary for five years A motion for new trial being filed and overruled, the court pronounced sentence in accordance with the verdict. The defendant excepted to the sentence, for the reason that he had not been granted allocution. Thereupon the sentence was set aside, allocution granted, and sentence again pronounced. The defendant filed a motion in arrest, which was overruled, and an appeal was duly granted. The evidence is briefly and fairly summarized by the Attorney General as follows:

'In brief the evidence shows that on the night of February 2, 1924, a crap table or gambling device was set up and being operated in the northwest corner of the basement of the Francis building in Brookfield, Linn county, Mo,; that a crap game was in progress, in which several men were participating, the appellant being one of such men; that the game had been in progress for an hour before the raid was made by the officers. The crap table itself was offered in evidence and contained the usual indentation in and near the middle thereof where the banker or keeper of such a table usually sits or stands to conduct the game. The evidence shows that the appellant sat on a chair in the indentation at the middle of this crap table with a pile of money in front of him where the banker of keeper of such table usually sits. The evidence further shows that the appellant had been sitting in this position and managing the game for an hour before the raid was made.

'In short, we think the evidence was sufficient to convince the jury that the appellant did on the occasion mentioned set up and keep a certain gambling device, to wit, a crap table, upon which dice were thrown and used, and that said gambling table was adapted, devised, and designed for the purpose of playing games of chance for money and property, and that appellant did then and there entice and permit persons to bet and play at and upon and by means of said gambling table within the meaning of the statute and within the language of the information.'

The raid was made by the sheriff of Linn county, the marshal of Brookfield, and others, after midnight. There were 25 or 30 men in the room; some of them rolling dice and betting money, or waiting their turns to do so. The defendant sat at the side of the table in the little cut-out place or indentation, and took the money. The money was piled up on the table in front of him. Witnesses, familiar with the game, testified it was a crap table; that crap games were being played on the table; that money was bet and lost on the games; and that the defendant was in charge of the table and the gambling. The defendant stood on a demurrer at the close of the state's case which, he insists, the court erred in overruling.

1. The pertinent part of the statute (section 3537, R. S. 1919) reads:

'Every person who shall set up or keep any table or gaming device * * * 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, be adjudged guilty of a felony,' etc.

In State v. Mathis, 206 Mo. 604, 610, 105 S.W. 604, 605 (121 Am. St. Rep. 687), Judge Burgess said:

'In State v. Rosenblatt, 185 Mo. 114, 83 S.W. 975, the accused was indicted under this same statute, and convicted of the offense of setting up and keeping a crap table. The contention of the defendant was that the indictment did not charge the 'setting up or keeping' any of the tables or gambling devices denounced by the statute; that instead of charging the setting up and keeping a roulette table it charged the setting up and keeping of a roulette wheel, and did not specify either of the gambling devices specified in said section. Upon this proposition Gantt, J., speaking for the court, said:

' 'The statute is broad enough to and does include the setting up or keeping 'any kind of gambling table or gambling device adapted, devised and designed for the purpose of playing the game of chance for money or property,' and this indictment specifically charges that the defendant did set up and keep one crap table, commonly so called, upon which dice...