State v. Young

• Decision Date: 04 April 1912
• Citation: 146 S.W. 70
• Parties: STATE v. YOUNG et al.
• Court: Missouri Court of Appeals

146 S.W. 70

STATE v. YOUNG et al.

Springfield Court of Appeals. Missouri.

April 4, 1912.

1. GAMING (§ 87)—OFFENSES—INFORMATION.

Rev. St. 1909, § 4750, makes every person who sets up or keeps any table or gaming device commonly called "A B C," faro bank, slot machine, stand, or device of whatever pattern, kind, or make, or however worked, operated, or manipulated, or any kind of gaming table or gambling device adapted, devised, and designed for the purpose of playing any game of chance for money or property, and shall induce or permit any person to bet or play at or upon such gaming device, guilty of an offense; and section 4751 makes every person guilty of an offense who shall bet any money or property upon any gaming table or device prohibited by the preceding section, or at or upon any other gaming device, or who shall bet upon any game played by means of such gaming table or other gambling device. Held, that section 4750 includes all gambling devices designed to play games of chance, whether of the same general class as those specified therein or not, if they are set up to induce or permit persons to gamble therewith, so that an information charging that accused unlawfully bet money upon a game of chance, played by means of a gambling device consisting of dice and a blanket adapted, etc., for the purpose of playing games of chance, was sufficient.

2. GAMING (§ 87)—OFFENSES—INFORMATION.

Under Rev. St. 1909, § 4750, making one guilty of an offense who sets up any gaming device commonly called "A B C," slot machine, etc., or other device "adapted, devised and designed for the purpose of playing any game of chance for money or property," and permits any person to bet thereon, an information was not sufficient which merely alleged that the device was "adapted" for the purpose of gaming, etc., where the device alleged to have been used was dice and a blanket; it being essential to allege that the device was "adapted, devised and designed" for the purpose of playing games of chance, where it is not one specially mentioned in the statute.

3. GAMING (§ 87)—OFFENSES—INFORMATION.

Rev. St. 1909, § 4751, which makes every person guilty of an offense who shall bet money or property upon any gaming table or device prohibited by the preceding section, or at or upon any other gambling device, or who shall bet at any game played at any such gaming table or other such gambling device, includes all gaming devices adapted for the purpose of playing games of chance, though it may not be kept or set up as provided in the preceding section, so that it is sufficient if the information allege that the device was adapted to play games of chance, or was one with which they were played, without alleging that it was "adapted, devised and designed" for the purpose of playing games of chance, as is necessary under the preceding section.

4. GAMING (§ 94)—OFFENSES—INFORMATION —VARIANCE.

Proof that accused was engaged in gambling for property of some kind would not support an allegation that he was gambling for money in a certain sum.

5. INDICTMENT AND INFORMATION (§ 168)— OFFENSES—ISSUES, PROOF, AND VARIANCE.

Where a statute prohibits several things in the alternative, and the information charges all conjunctively, proof that the offense was committed in any one of the forbidden ways charged is sufficient.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Matt Young and others were convicted of gaming, and they appeal. Reversed and remanded.

Neale & Newman, of Greenfield, for appellants. Edwin Frieze, Pros. Atty., of Greenfield, and William B. Skinner, of Mt. Vernon, for the State.

COX, J.

Prosecution by information for gambling. This case originated in justice court, and in that court these defendants and one Robert Shields, who was jointly charged with them, were all convicted, and appealed to the circuit court. In that court, the appeal was dismissed as to Shields, and upon trial by jury the other defendants were convicted, and have appealed to this court.

A motion to quash the information was filed, overruled, and exception saved. The formal parts of the information were in the usual form. The charging part of the information is as follows: "That said defendants, Wm. Gilmore, Matt Young, Bob Shields, Gene Martin, Elbert Hobbs, and Wm. Perry, on the _____ day of July, A. D. 1911, at said county of Dade, did then and there unlawfully bet a sum of money, to wit, 25 cents, upon a game of chance, commonly called `craps,' and then and there played by means of a certain gambling device, to wit, dice, and a blanket adapted for the purpose of playing games of chance for money and property."

Objection is made that this information is not good under any section of the statute. There are but two sections that it can be placed under, to wit, sections 4751 and 4764, Stat. 1909. As to section 4751, it is contended that the gambling devices mentioned therein are the same as those covered by section 4750 only, and that dice and a blanket are not included in section 4750, and therefore not included in section 4751.

Section 4750, as far as it relates to the question in hand, 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 gaming 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. * * *" The words italicized were added by amendment in 1901.

Section 4751 is as follows: "Every person who shall bet any money or property upon any gaming table, bank or device prohibited by the preceding section, or at or upon any other gambling device, or who shall bet upon any game played at or by means of any such gaming table or other gambling device. * * *" (The italics are ours.)

The Supreme Court of this state has construed section 4750 to be restricted to the gambling devices named therein and others of a like kind, under the rule of construction which requires that, "where a particular class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive and the general words treated as referring to matters ejusdem generis with such class." State v. Bryant, 90 Mo. 534, 2 S. W. 836. The strict construction put upon that section, however, was very much modified in later cases before the amendment of 1901, as the discussion of this section in later opinions of the court will show. See State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975; State v. Lockett, 188 Mo. 415, 87 S. W. 470; State v. Mathis, 206 Mo. 604, 105 S. W. 604, 121 Am. St. Rep. 687. Since the amendment of the statute in 1901, the Supreme Court has held, as we understand it, that section 4750, as it now stands, is broad enough to cover all gambling devices, of whatever kind or character, that are adapted, devised, and designed for the purpose of playing games of chance for money or property, whether they are of the same general class as those specifically named in that section or not, when such gambling device is set up or kept for the purpose of inducing, enticing, or permitting persons to gamble therewith, and persons are, in fact, induced, enticed, or permitted to do so. State v. Hall, 228 Mo. 456, 128 S. W. 745; State v. Lee, 228 Mo. 480, 128 S. W. 987; State v. Chauvin, 231 Mo. 31, 132 S. W. 243.

In the Hall Case, attention was called to the amendment of the statute, and also to the fact that in some of the former decisions of the court their attention had not been directed to the amendment; and, in speaking of the words added by the amendment, it is said that they "were intentionally added, for the purpose of covering every kind of gambling table or gaming device adapted, devised, and designed for the purpose of playing any game of chance for money or property, where the person setting up and keeping the same induces, entices, or permits persons to bet and play at and upon such gaming table or gambling device, or on the side or against the player thereof." Under the authority of this case, this statute (section 4750) now covers all kinds of gambling devices which are adapted, devised, and designed for the purpose of playing games of chance, when used as above stated; and an information charging, in the language of the statute, that the particular gambling device described in the information was then and there adapted, devised, and designed for the purpose of playing games of chance for money and property is sufficient. State v. Mathis, supra. The proof required to sustain a conviction is satisfactory, if it shows that the device was of the character just described, and was kept for the purpose of permitting persons to play games of chance thereon for money or property. If, therefore, we adhere to the rule that section 4751 covers no gambling device not included in section 4750, dice and a blanket are a gambling device, within the meaning of both sections, when used as above described. We therefore hold the information good, as against the objection that dice and a blanket are not a gambling device, within the meaning of the statute. Whe...