The State v. Hilton
| Decision Date | 12 March 1913 |
| Citation | 154 S.W. 729,248 Mo. 522 |
| Parties | THE STATE v. EDWARD A. HILTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.
Affirmed.
Willis H. Clark for appellant.
(1) The second count of the information did not sufficiently individuate the offense so as to apprise appellant of the nature and cause of the accusation or afford a basis for a plea of res adjudicata. Constitution of Missouri, art. 2 sec. 22; 22 Cyc. 340; State v. Wilkerson, 170 Mo 189; State v. Cronin, 189 Mo. 663; State v. Crooker, 95 Mo. 389; State v. Rocheford, 52 Mo. 199; State v. Terry, 109 Mo. 601; State v. Stowe, 132 Mo. 199; State v. Pickett, 174 Mo. 663; State v. Wade, 147 Mo. 73; State v. Krueger, 134 Mo. 262; State v. Keating, 202 Mo. 197; State v. Burke, 151 Mo. 136; State v. Murphy, 141 Mo. 267. (2) The testimony of the witness Frank Brown should have been excluded and the motion of appellant to strike it out and direct the jury to disregard it should have been granted. State v. Spray, 174 Mo. 569; State v. Parker, 96 Mo. 382; State v. Reed, 85 Mo. 194; State v. Turner, 76 Mo. 350; State v. Reavis, 71 Mo. 419; State v. Jackson, 95 Mo. 623; State v. Wilkerson, 170 Mo. 189; State v. Cronin, 189 Mo. 663; State v. Pruitt, 202 Mo. 49; State v. Bateman, 198 Mo. 212; State v. Minor, 193 Mo. 597; State v. Todd, 194 Mo. 377; State v. Spivey, 191 Mo. 87. (3) The testimony of officer Wells in rebuttal was upon immaterial and irrelevant subjects and it was not competent for any purpose. State v. Walsh, 203 Mo. 605; State v. Kelleher, 201 Mo. 614; State v. Foley, 144 Mo. 600; State v. Forshee, 199 Mo. 142; State v. Myers, 198 Mo. 225; State v. Grant, 144 Mo. 56. (4) The portions of the closing argument to the jury of prosecutor Griffin objected to by appellant were improper and unfair and not based upon the admitted evidence and contained an intimation to the jury that evidence against appellant existed other than that produced. State v. James, 216 Mo. 394; State v. Spivey, 191 Mo. 87; State v. Woodward, 191 Mo. 617; State v. Kennedy, 177 Mo. 98; State v. Shipley, 174 Mo. 512; State v. Hudspeth, 159 Mo. 178; State v. Ferguson, 152 Mo. 92. (5) The statute upon which this prosecution is founded is unconstitutional and void. R.S. 1909, sec. 4770; Const. of Mo., art. 21, secs. 4, 10, 22, 30, 31, 53, art. 4, sec. 53; U. S. Const., Amend. 14, sec. 1; State v. Walsh, 136 Mo. 400; State v. Julow, 129 Mo. 163; State ex rel. v. Herrmann, 76 Mo. 340. (6) The first instruction is broader than the charge contained in the second count of the information, upon which the conviction is based, is misleading and confusing, is erroneous in its application to the law and the facts, and constitutes a comment upon the evidence and an argument to the jury.
Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State.
(1) Indictments, of which this information is a rescript, have been approved in State v. Wilkerson, 170 Mo. 190; State v. Cronin, 189 Mo. 669, and State v. Miller, 190 Mo. l.c. 459. The power of the State to prohibit lotteries and the various transactions connected with them, in the interest of public morals, is a recognized branch of the police power; and statutes directed to that end are universally recognized as constitutional. 25 Cyc. 1641. Legislative enactments prohibiting the sale of tickets in any scheme in the nature of a lottery are expressly authorized by the Missouri Constitution, art. 15, sec. 10. (2) The first portion of instruction 1, which is simply introductory, is correct. State v. Williams, 136 Mo. 293. Subdivision one is a correct statement of the law applicable to joint offenders. Subdivisions two and three on essential elements of the offense necessary to be proved, are proper and designate the material allegations of the information which the State must prove. That part of subdivision three in relation to circumstantial evidence has been approved. State v. Turner, 106 Mo. 272. (3) Frank Brown was called as a witness for the State, but he was a most unwilling witness. The court ruled that his testimony as to matters subsequent to May 19th be stricken out. Then, on recross-examination and redirect examination witness gave contradictory testimony as to whether the matters testified to by him in chief were before or after May 19th. But the record shows that the witness stated that he had received plays for appellant and turned the money over to appellant and that these dealings occurred prior to May 19th and within two or three years of the trial. This evidence was competent and the court committed no error in refusing to strike out all the testimony of Brown. (4) It has been held that this court will not review the discretion of the trial judge to control the argument of counsel, unless such discretion has been clearly abused, and the rights of the accused were actually prejudiced. State v. Hamilton, 55 Mo. 520. Courts are loath to reverse judgments on account of improper remarks of attorneys -- especially as in this case, where the proof of guilt is clear. In such cases, the verdict of guilty would likely have been returned, regardless of the improper remarks. State v. Hess, 240 Mo. 147; State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Dusenberry, 112 Mo. 277; R.S. 1909, sec. 5115.
This is an appeal from one of the criminal divisions of the circuit court of the city of St. Louis. The information authorizing the prosecution was in two counts under section 4770, Revised Statutes 1909; the first count charged defendant and one Sylvester Scharpiat with making and establishing "a policy" as a business and avocation, and the second count with aiding and assisting in making and establishing "a policy" as a business and avocation.
As the sufficiency of the indictment is challenged, we set it forth in full, omitting the caption and signature:
Defendants were arraigned and pleaded not guilty. A severance was granted to Scharpiat and the State elected to try the defendant Hilton first. There was a trial of defendant before a jury. At the close of all the testimony the State elected to proceed upon the second count of the information and the court withdrew from the consideration of the jury all matters relating to the first count. Thereupon defendant asked the court to give a peremptory instruction in the nature of a demurrer to the evidence, which was refused. Instructions were given (1) defining the offense and prescribing the punishment; (2) the weight to be given circumstantial evidence as affecting guilt; (3) the probative force of defendant's statements; (4) that defendant was a competent witness in his own behalf; (5) that the information was not to be considered as evidence; (6) the presumption of innocence; (7) defining a reasonable doubt; (8) that the jury were the sole judges of the credibility and weight to be given the testimony; and (9) that the verdict must be based on the evidence and not upon arguments of counsel.
After the arguments of counsel, the jury returned a verdict of guilty as charged in the second count of the information and assessed defendant's punishment at three years' imprisonment in the penitentiary.
Ineffectual motions for a new trial and in arrest were filed, and overruled, and an appeal was perfected to this court.
Judgment was rendered in accordance with the verdict.
Upon defendant's executing a bail bond approved by the trial court, a stay of execution was granted pending the appeal.
These facts are disclosed by the testimony:
On the 19th day of May, 1910, the date alleged in the information three police officers named Wells, Stephenson and White, who had been detailed to look after gambling and were designated on the force as the "Gambling Squad," went to a room in the rear of a shoemaker's shop at 922 Sidney street in that city, in the discharge of their special duty. Wells and White went to a window of the rear room, and saw defendant and Scharpiat sitting at a table marking in policy books. Stephenson went through the shoemaker's shop and entering the rear room seized defendant with one hand and Scharpiat with the other, and pulled them away from the table, holding them until the other two officers ran around and entered the room, and defendant and Scharpiat were placed under arrest. Paraphernalia consisting of wall sheets, policy books...
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