228 Mo. 456 | Mo. | 1910
On March 24, 1909;, the prosecuting attorney of Newton county filed an information with the clerk of the circuit court of said county, charging the defendant with having on the-day of February, 1909, at the county of Newton, unlawfully and feloniously set up and kept a certain gambling table and gambling device, to-wit, one poker table, commonly so called, upon which cards, commonly called playing cards, were used, which said gaming table and 'gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and unlawfully and feloniously induced and permitted divers persons to bet and play at and upon and by means of said gaming table and gambling devices.
A change of venue was granted from the judge of the circuit court of Newton county, on account of alleged prejudice on the part of said judge against the defendant, and Honorable B. G. Thurman, judge of
The defendant was duly arraigned and entered his plea of not guilty and was put upon his trial on the 21st of October, 1909, and convicted, and his punishment assessed at two years in the penitentiary.'
The evidence tended to show that the defendant was the owner of the DeMont Hotel at Seneca in Newton county, and had lived in said town since 1876; that in the fall of 1908, one R. 0. Thompson, a professional gambler, who had gambled in Kansas and Oklahoma continuously for eight years last past, went to the defendant and arranged for room number twelve in his hotel. This room number twelve had been three years previous to this time occupied by a man by the name of Dan Stuckey, who had built and left in the room a gambling table with a slot or slide on top, in which the gamblers- would deposit checks, which was called the bank or take-off of the person running the house. Dan Stuckey also left in this room about one hundred decks of common playing cards and divers red, white and blue poker chips. Thompson used this gambling paraphernalia, but the evidence was that this table had been covered by a cloth, and the slot or slit was not used, but Thompson in playing the game, instead of adding his chip-, would not ante and kept his ante out as pay for the use of the room, which was called the “kitty” or “take-off,” and that defendant and Thompson would divide the proceeds, or what Thompson would win in the game and the “kitty,” equally. Thompson sold checks to the players as follows: the blue at $1.25, white at five cents, and the red at twenty-five cents, and the players would use these chips as money, and when the game was over any of the players having chips had them cashed by Thompson at the same price at which he sold them. If Thompson was not present to attend to the business, the defendant would do it. The door by which they entered the room
The evidence on the part of the State tended to show that games of poker for money were often played in this room from the time Thompson formed this partnership with the defendant in September, 1908, until the day of the raid by the sheriff. The evidence also tended to show that the defendant spent a large part of his time in this room. The usual custom was to sell two dollars’ worth of chips to the players to start with, and if they wished more afterwards they could buy as many as they wished. That draw poker was the usual game played in that room. The game of draw poker was fully explained and described in the evidence, but it is not deemed necessary to repeat the description in this statement. The chips, playing cards and table were all offered in evidence before the court and jury.
The defendant testified in his own behalf that he lived at Seneca and had lived there since 1876; that he was the proprietor of the DeMont Hotel; that Dan Stuckey had boarded with him and occupied room number 22 then, but they had since changed the numbers, and it was now numbered twelve, and when he went away he left in the room these poker chips, cards and this table; that the defendant did not own or claim them; that Thompson was a guest in his hotel, came there in August, 1908. Thompson sent Norman Mitchell to see him about coming there; defendant said he did not want to talk to Thompson; that he never made any arrangements with Thompson to divide the profits or winnings in the poker games. Thompson was a high liver .and a good spender. He spent a go.od deal of
I. This is a prosecution under the Act of March 19, 1901, amending section 2194 of the Revised Statutes of 1899, by which the words ‘ ‘ slot machine, stand or device of whatever pattern, kind or make however worked or operated or manipulated” are added to said section 2194. The defendant insists that his demurrer to the evidence entitled him to an acquittal and that the court erred in not so directing.
The credibility of the witnesses and the weighing of the evidence were matters for the jury to determine. If the jury believed the witness Thompson, they were justified- in finding that the defendant furnished the
The learned counsel for the defendant earnestly insists that under the Gilmore case, 98 Mo. 206, it was not a violation of this statute. That the facts in this case clearly differentiate it from those in the Gilmore case, we think is obvious. In that case the defendant was the proprietor of a saloon and furnished the persons who came to his saloon cards and chips or checks, and they played such games as seven up, euchre and poker on the ordinary wine and lunch tables which he kept in his saloon; the defendant did' not participate in such game, nor play with anybody against any of the players, but the players bet their money against each other, and not on the side of, of against, the defendant therein, who took no part in the games, either directly or indirectly; the cards and chips used were handed out from behind the bar,_ only to such persons as requested them; the defendant did not have the care or management of the cards or chips or the games played, and had nothing to do with the cards or chips further than to give them to such persons as called for them; he would sell the chips to the players at five cents each when they commenced the game and
In State v. Rosenblatt, 185 Mo. 114, it was earnestly insisted that a crap table and a ehuckaluck table were not such devices as contemplated by the statute, but it was held that the statute was broad enough to and did include the setting up and keeping any kind of gambling table or gambling device adapted, de
The foregoing decisions on this question were rendered in construing section 219'4 without reference to the amendment of 1901, which amendment appears not to have been called to the attention of the court, but certainly the words added by that amendment, to-wit, “slot machine,stand or device of whatever pattern, kind or make or however worked, operated or manipulated, ’ ’ in no way limit the meaning of the section prior to its amendment, but were intentionally added for the purpose of covering every kind of a gambling table or gambling device adapted, devised and designed for the purpose of playing any game of chance for money or property when 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 at or upon any game played on or by means of such table or gambling device or on the side or against the player thereof. Keeping in view the broad language of the statute and the purpose for which it was enacted, so well stated by Judge Ryland in State v. Fulton, 19 Mo. 680, we are unable to distinguish a case in which a person set up and maintained a table for the playing of craps for money or property and a table set up as the table in this case was by the defendant and Thompson, and furnished with cards and poker chips, upon which divers persons were induced or at least permitted to play poker for money or property and the keeper thereof took his regular rake-off from the winners, 'We think the statute is broad enough
II. We do not think there was any prejudicial error committed in permitting Stuckey to explain the use and operation of the table slot as it was originally constructed, as it was developed in his testimony that the slot was covered by a cloth at the time of this raid. Moreover, the court fully instructed the jury on that matter, that, although they might find that it had devices and was designed and adapted as originally constructed to be used as a poker table, yet if it was so covered that such device could not be and was not so used, the defendant was entitled to acquittal.
III. An exception was saved to the giving of the first instruction by the court, for the reason that appellant’s counsel claim there was no proof that this table as used was specially adapted, devised and designed for the purpose of playing poker. The court did not require the jury to find that the table was specially designed for the purpose of playing poker, nor was it
It is also objected to this instruction that there was no evidence that the defendant induced or enticed any one to play upon the table. The instruction authorized the jury to find the defendant guilty if he induced or permitted divers persons to bet and play upon said gambling table and Thompson testified that he introduced his friends there; that he played himself and sometimes had charge of the game. Under these circumstances this objection to the instruction is, we think, not meritorious.
Again it is insisted that instruction number one conflicts with instruction number seven.
Of course, it is elemental that all the instructions are to be considered together. Instruction seven was given on behalf of the defendant, and told the jury that before they could convict the defendant they must find and believe from the evidence that the table in question was adapted, devised and designed for the purpose of playing poker, and unless they so found and believed they should acquit the defendant, and although they might find that it had devices and was designed and adapted as originally constructed for use as a poker table, yet, if the same was so covered that such device could not be and was not used, then in that event they should acquit the defendant. There is no conflict in the two instructions, and instruction number seven was not equivalent to a peremptory instruction to acquit the defendant, as the jury under the two instructions were left free to find under the evidence that, notwithstanding the cloth covered the slot, the table was still designed and adapted to the playing of poker thereon.
IV. Complaint is also made that the court modified instruction number nine requested by the defendant in these words: “The court instructs the jury that
We are unable to see wherein the instruction conveyed any different idea after this modification from what it did prior thereto. After all, it simply tells the jury that ordinary playing cards are not a gambling device under this statute, and the defendant had the full benefit of that instruction and having prayed for it had no cause to complain of it.
As to the other instructions no complaint is made of them, and we have read them carefully and they are as favorable to the defendant as the law would justify.
The jury having been properly instructed and there being sufficient evidence if believed- by them to sustain the charge in the indictment, it is not the province of this court to interfere therewith. Accordingly the judgment must be and is affirmed.