The State v. Johns

• Decision Date: 23 June 1914
• Citation: 168 S.W. 587,259 Mo. 361
• Parties: THE STATE v. ELVY JOHNS and WALTER GROSSE, Appellants
• Court: Missouri Supreme Court

168 S.W. 587

259 Mo. 361

THE STATE v. ELVY JOHNS and WALTER GROSSE, Appellants

Supreme Court of Missouri, Second Division

June 23, 1914

Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

William P. Elmer for appellants.

John T Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The information charges a statutory crime and sufficiently follows the statute. The same form as used in the case at bar has the approval of this court. Sec. 4750, R. S. 1909; State v. Etchman, 184 Mo. 193; State v Rosenblatt, 185 Mo. 114; State v. Cannon, 232 Mo. 211. (2) Separate verdicts were returned, finding the appellants "guilty as charged in the information." Such a verdict is responsive to the information and has been often approved by this court. (3) Although the motion for a new trial alleges that the court committed error in refusing to give instructions 1, 2, 3, 4, 5 and 6, as requested by the appellants, the bill of exceptions does not show that instructions by such numbers were ever requested of the court; nor does the bill of exceptions show that the appellants objected in any way to the instructions as given. The instructions given by the court fully cover the law of the case as required by the recent decisions of this court. State v. Conway, 241 Mo. 291; State v Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 713.

WALKER, P. J. Brown and Faris, JJ., concur.

OPINION

WALKER, P. J.

Appellants were charged in an information filed by the prosecuting attorney of Dent county under the provisions of section 4750, Revised Statutes 1909, with setting up and keeping a gambling table and gaming device called a "crap game," at the town of Salem, in said county, during the month of October, 1913. Upon a trial they were convicted and their punishment assessed at two years' imprisonment in the penitentiary, respectively. In conformity with the usual procedure they appeal to this court.

At the time charged in the information appellants were conducting a restaurant in the town of Salem, in Dent county. In the basement of the building occupied by them, there was a table covered with a cloth or blanket, and on this different parties would throw dice for money, in a game called "craps," a particular description of which is not necessary in this connection. The evidence is sufficiently clear that not only this basement but the table therein belonged to or was under the control of the appellants, and that they conducted the games played thereon and took a per cent for same, or, in the terminology of crime, "took the rake-off." [State v. Wolf, 230 Mo. 676.]

No testimony was offered on behalf of the appellants.

I. It was contended by appellants on a motion to quash the information that no preliminary examination had been accorded them as required by section 5056, Revised Statutes 1909, as amended by Laws 1913, p. 224. The transcript furnishes a complete refutation to the truth of this contention, showing, as it does, a compliance with the requirements of the statute referred to.

II. The information which charges a statutory offense sets forth the same in the language of section 4750, supra, or its legal equivalents, and conforms to precedents approved in like cases. [State v. Rosenblatt, 185 Mo. 114, 120; State v. Locket, 188 Mo. 415; State v. Lee, 228 Mo. 480; State v. Cannon, 232 Mo. 205; State v. Lawson, 239 Mo. 591.]

III. The law applicable to cases of this character was given by the trial court in four instructions: The first was formal and defined the offense as set forth in the information, and told the jury in clear and unmistakable terms what facts were necessary to be proved before a verdict of guilty could be found, and stated the different degrees of punishment authorized; the second defined the term "wilfully;" the third explained to the jury that they might convict one of the defendants and acquit the other, or convict both or acquit both as they found from the evidence (State v Kaiser, 124 Mo. 651, 664; State v. Vaughan, 200 Mo. 1, 19), and that separate verdicts should be returned in the case of each of the appellants; the fourth, which was the only instruction asked by the appellants, was in...