State v. Dyson

39 Mo. App. 297 | Mo. Ct. App. | 1890

Smith, P. J.,

The defendant was indicted, tried and convicted by the circuit court of Macon county, under section 1549, Revised Statutes, as amended by the act of March 24, 1881. Acts,-1881, p. 112. The indictment charged that the defendant “did unlawfully permit a certain table, and gambling device, called a pack of cards, designed and used for the purpose of playing games of chance, for money and property, to be used for the purpose of gaming in a certain building there situate and. under the control of him, the said Alfred Dyson.” The said section 1549 of the statute provides that “every person who shall permit any gaming table, bank or device, to be set up or used for the purpose of gaming, in any house, building, shed, booth, shelter, lot, or other premises to him belonging, or by him occupied, or of which he hath, at the time, possession or control, shall,” etc.

It will be observed that, in the indictment, the word “gaming” does not precede that of “table,” as is the case in the statute, but the word “gambling” immediately precedes that word.

I. Now it is contended that, as the indictment nowhere employs the word “gaming,” it does not follow the statute, and is, for that reason, bad.

Is this contention tenable % The, word “gambling” is interchangeable with that of “gaming” — they are equivalent words — having the same meaning and signification. Webster’s Diet, vide — gambling—gaming.

In the statutory provisions in pari materia, sections 1547 and 1548, these two words are used and employed therein, interchangeably — so that a “gambling table, bank or device” is the same as a “gaming table, bank or device.” There is a certain class of descriptive words, which, being terms of art, have a well-defined meaning, in criminal pleading and practice, for which words of equivalent meaning may not be substituted, but it is not believed that the word “gaming” “is of that class. The supreme court, in State v. Nelson, 19 Mo. 393, expressly held the terms “gaming” and “gambling” to be synonymous. Cards have been held a “gaming device” within the meaning of this section. State v. Jackson, 39 Mo. 420; State v. Scaggs, 33 Mo. 92.

The offense, prohibited by this statute, is the permitting any gaming device to be used for the purpose of gaming, in any Louse belonging to, occupied by, or under the possession, or control, by any one. It seems this offense is well enough charged in the indictment to require the defendant to answer thereto. If the defendant knowingly permitted the gaming device, described in the indictment, to be used for gaming purposes in his house, then he violated the statute. As to whether he was guilty or not, was very fairly and properly submitted, upon the evidence, to the jury, under the instructions. Those given for defendant were exceedingly favorable to him.

We cannot say, after a careful scrutiny of the evidence, preserved by the bill of exceptions, that there was no evidence to sustain the verdict.

II. As to the alleged error of the circuit court in refusing to instruct the jury in respect to the remarks made by the prosecuting attorney in closing the argument, it is sufficient to say that, as the defendant’s counsel did not object to the same at the time, or call the attention of the court thereto, he could not after-wards, for the first time, raise the objection thereto by an instruction. Such practice is not allowable. Besides, it may well be doubted whether the remark of the prosecuting attorney was improper, or, if so, that it was as harmful as seems to be supposed. We think that it is, perhaps, true that the prosecuting attorney, in his remarks to the jury, exceeded the limits of legitimate comment, yet, as the court’s attention was not called thereto at the time, by making the proper objection thereto, such objection could not afterwards be made the" basis of an exception at which we can look.

The judgment will be affirmed.

All concur*