State v. Young
| Decision Date | 04 April 1912 |
| Citation | 146 S.W. 70,163 Mo.App. 88 |
| Parties | STATE OF MISSOURI, Respondent, v. MATT YOUNG et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Dade Circuit Court.--Hon. B. G. Thurman, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Shafer & Wetzel for appellants.
(1) Appellants' motion to quash the information should have been sustained, for the reason that no offense prohibited by the laws of the state of Missouri was charged therein. The intention was doubtless to charge a violation of section 4751, Revised Statutes 1909. But "dice and a blanket" are not such gambling devices as are prohibited by section 4750, Revised Statutes 1909, nor are they ejusdem generis with those devices. State v. Bryant, 90 Mo 534; State v. Gilmore, 98 Mo. 206; State v Elchman, 184 Mo. 193; State v. Koock, 202 Mo 235. (2) The verification by the prosecuting attorney in court was not objected to by appellants and possibly this defect was cured, but the motion should still have been sustained for failure to endorse the witnesses on the information. State v. Roy, 83 Mo. 268; State v. Griffin, 87 Mo. 608; State v. Davidson, 44 Mo.App. 513; State v. Heinze, 45 Mo.App. 403. (3) There is no evidence in the record that appellants or any of them bet any sum of money on any game, or played any game for money or bet any money on the hands or sides of any person who did play. The demurrer should have been sustained.
Edwin Frieze, Prosecuting Attorney, and Wm. B. Skinner, of counsel, for respondent.
(1) The information in this case is bottomed on section 4764, Revised Statutes 1909. It is sufficient in law, following as it does the language of the statute, and it contains all the essential averments to notify the accused of the nature and cause of the accusation. The action of the trial court, therefore, in sustaining the information on the ground that it failed to charge the defendants with an offense against the laws of the state, was right. The action of the court in overruling the motion to quash was also right in respect to the second ground on which the information was assailed. Dice being specifically mentioned in the statute, as a gambling device which may be adapted to or used in playing a game of chance, it was not necessary for the state to allege or prove that the same was in fact a gambling device. R. S. 1909, sec. 4764; State v. Maupin, 71 Mo.App. 54. (2) Finally it is urged that the trial court erred in refusing to sustain the demurrer to the evidence. The evidence was sufficient to go to the jury and it makes a prima facie case, one which the accused makes no attempt to rebut or explain. The verdict should stand. State v. Andrews, 43 Mo. 470; State v. Drahn, 140 Mo.App. 263.
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, Natt 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, Revised Statutes 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, 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. 457; State v. Mathis, 206 Mo. 604, 105 S.W. 604.] 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. Whether they are or not is a question of proof depending upon the use made of them.
If however, this information were drawn under section 4750 it would be bad for another reason. It does not follow the language of that section and does not charge that the gambling device, to-wit, dice and a blanket, were adapted, devised and designed for the purpose of playing games of chance for money and property but only charges this device was adapted for the purpose, etc. It has been held by the Supreme Court of this state that and that the use of these words or words of the same meaning are essential in charging a party with keeping a gambling device not named in this statute. [State v....
To continue reading
Request your trial