The State v. Lee
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 987,228 Mo. 480 |
| Parties | THE STATE v. WILLIAM LEE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Chas. C. Allen Judge.
Affirmed.
C Orrick Bishop for appellant.
(1) The court erred in overruling appellant's demurrer to the indictment. The second count charged the defendants with setting up and keeping a certain table commonly called a crap table, etc., but failed to aver how or in what manner it was used. The approved indictments in the following cases, in each instance, alleged that the table in question was one "upon which dice were used," an averment omitted from this count, hence it was insufficient. State v Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604; State v. McKee, 212 Mo. 138. The second count also alleged that defendants did the act charged, not only on the specific day mentioned, but also "on divers other days and times prior thereto," without fixing the period within which it was done. It might have been at a time barred by the statute; and at all events it gave defendant no clue as to when it was charged to have been done, and so left him in the dark as to what period he might have to defend. (2) The indictment charged that the defendants did the act upon the 20th day of December, 1907. The principal witness to sustain the charge, and the only witness who pretends to connect this appellant with the keeping of the alleged game, the negro, Fred Hutchinson, testified that on December 20, 1907, he was in the place alleged to be kept by the appellant; that at that time he saw, and participated in, a game of craps, where appellant took off a nickel four or five times when a bet was won. Having thus made at least a primafacie case under the indictment, and fixed the date as charged, it was error to admit testimony as to other times when a game was being played there, especially when the appellant was not shown to have been present at, nor to have participated in, nor to have had any control of, such alleged games. State v. Railroad, 219 Mo. 156. These other alleged games were far apart in point of time, were separate and distinct offenses, if committed at all, and inadmissible on any theory of proving intent or scienter. They could only serve to prejudice the jury. (3) The court erred in excluding testimony sought to be elicited by appellant from the negro witness Allen Smith. The crucial test of any witness is his cross-examination. A defendant has the right of a searching cross-examination, and to any evidence that may discredit a witness against him. It will not do to deprive one of this privilege who is on trial for his liberty. State v. Taylor, 118 Mo. 153. (4) The demurrer to the evidence should have been sustained. (a) There was no evidence from any witness that the buildings described as 410, 411 and 412 North Levee were in the city of St. Louis, nor that any games as described were played in the city of St. Louis; nor that any transaction detailed in the testimony occurred in the city of St. Louis. The record is challenged to show that the city of St. Louis was ever mentioned. Hence no venue was proven. (b) The indictment averred that the appellant induced, enticed and permitted certain persons "whose names are to these grand jurors unknown to bet and play at and upon a game played," etc. Whereas, it appears from the testimony that witnesses who testified at the trial as to alleged games played at appellant's "place," in which they claimed to have taken part, were before the grand jury as witnesses and testified there and gave their names; and that the officer who led the so-called raids (Wells), and arrested parties there on the charge of playing as alleged, not only knew their names but actually secured warrants for a number of them, so that the grand jury actually knew and had the ready means of ascertaining who were induced, enticed and permitted, etc. If these facts were within the knowledge of the grand jury, or could have been ascertained by them by due inquiry, the averment that the names of the persons were unknown to them was untrue and a fraud upon the defendant, who is entitled to know who are his accusers, if that fact is known to the prosecution. State v. Stowe, 132 Mo. 199; State v. Thompson, 137 Mo. 620; State v. Wiseback, 139 Mo. 214. (c) There was no evidence that the game alleged to have been played was a game of chance. The mere calling of it "craps" did not make it craps nor a game of chance. (d) The testimony of Hutchison, which is the only testimony that connects the appellant with the alleged game as a keeper, and on the date named in the indictment, is such as should cause the court to take the case from the jury. No court should permit a defendant to be convicted when it appears, as in this case, that the officers of the law give money to a person with which to start a game in order that such officers may make an arrest. Such conduct cannot be too severely condemned. State v. Waghalter, 177 Mo. 676. (5) The verdict is insufficient to support a judgment. It reads "We, the jury, etc., find the defendant guilty of setting up gambling device, as charged in the indictment," etc. This verdict found appellant guilty of only a part of the charge, and that a part which, standing alone, constitutes no offense. It is no offense to set up a gambling device. State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 663; State v. Miller, 189 Mo. 673; State v. Modlin, 197 Mo. 376.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
(1) Appellant was convicted under the second count of the indictment. It follows the approved form set out in the case of State v. Lockett, 188 Mo. 418. The words, "upon which dice were used," are wholly surplusage and unnecessary. Every essential element of the statutory crime is charged in the second count under which appellant was convicted. It is true that similar words appear to have been used in the indictments or informations in the cases of State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604 and State v. McKee, 212 Mo. 138, but in neither of those cases was the necessity of such words passed upon, nor the sufficiency of the indictment or information questioned. (2) The State is not required to prove the commission of the offense on the date alleged in the indictment, which in this case was December 20, 1907, or on any particular date; it may be shown that it was committed on any date prior to the filing of the indictment, and within the Statute of Limitations. State v. Palmberg, 199 Mo. 233; State v. Gift, 112 Mo.App. 200. (3) It is not necessary that the venue of a crime be proved by direct and positive evidence. It is sufficient if it can be reasonably inferred from the facts and circumstances as proved. State v. Shour, 196 Mo. 200. The testimony is undisputed that a crap game was going on at the time of the raid on December 20, 1907, the date alleged in the indictment. The proof shows that bets were being made on the crap game, and that was sufficient. State v. Mathis, 206 Mo. 604; State v. Rosenblatt, 185 Mo. 114; State v. Locket, 188 Mo. 415. (4) The verdict is a general one, and is not limited by the insertion of the words, "of setting up gambling device." The words, "as charged in the indictment," make the verdict a general one, and it should be so treated by this court on appeal. State v. Bohle, 182 Mo. 67; State v. Court, 225 Mo. 609; State v. Smith, 190 Mo. 706; State v. McGee, 188 Mo. 401; Wallace v. State, 70 Tenn. 29.
On April 29, 1908, the grand jury for the city of St. Louis returned an indictment in two counts against the defendant. In the first count he is charged with having set up and kept gambling devices, to-wit, one poker table and one crap table, on December 20, 1907, at numbers 410, 411 and 412 North Levee street in the city of St. Louis, and the second count was in these words: "and the grand jurors aforesaid, upon their oath further present, that William Lee and Sam Favors on the twentieth day of December, one thousand nine hundred and seven, and on divers other days and times prior to and between that day and the day of the filing of this indictment, at the city of St. Louis and State of Missouri, did then and there willfully, unlawfully and feloniously set up and keep a certain table and gambling device commonly called a crap table, the same being then and on said other days and times there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property; and did then and on said other days and times there unlawfully and feloniously induce, entice and permit certain persons, whose names are to these jurors unknown, to bet and play at and upon a game played on and by means of such gambling device; against the peace and dignity of the State."
The indictment was regularly assigned to Division Number Twelve of the circuit court for the trial of criminal cases, and a severance was granted to the defendant, who filed his demurrer to the indictment, which was overruled. At the December term, 1908, the defendant was put upon his trial, which resulted in his conviction and his punishment was assessed at two years in the penitentiary. He filed his motions for a new trial and in arrest, which were heard and overruled, and he was sentenced according to the verdict. From that sentence he has appealed to this court.
At the close of the testimony on behalf of the State, the State entered a nolle prosequi as to the first count of the indictment and hence that count is not before us for consideration.
The evidence tended to prove that the defendant Lee was in charge of the buildings known as numbers 410, 411 and 412 North Levee in...
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