State v. Jackson, 242 Mo. 410

State v. Jackson

242 Mo. 410 | Mo. | 1912

KENNISH, J.

Appellant was indicted in the circuit court of the city of St. Louis, at the October term, 1910,. for the felony of setting up and keeping gambling devices in violation of section 4750, Revised Statutes 1909. The indictment, so far as material, is as follows:

*417“ . . . And that the said Ollie Jackson and one Theodore Washington, on or about the first day of July, in the year of our Lord, one thousand nine hundred and ten, at the city of St. Louis aforesaid, did unlawfully and- feloniously set up and keep divers gaming tables and gambling devices, to-wit: one crap table, commonly so called, and one poker table, commonly so called, upon which dice and cards were used, which said gaming tables and gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and did then and there unlawfully and feloniously entice and permit divers persons, to-wit: Bichard Sydnor, William Bansom, G-us Watson, William Palmer, Lee Marion, Frank Slaughter, Mitchell Pearl, Thomas Shaw, Joseph Menears, Andrew Yaughn, and divers other persons to these grand jurors unknown, to bet and play at and upon and by means of said gambling tables and gambling devices; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

A severance was granted, and upon a separate trial the defendant was convicted and sentenced to the penitentiary for a term of two years. From the judgment and sentence he appealed to this court.

This is n companion case to the case of State v. Washington, decided at the present term of this court, 242 Mo. 4.01, and reference is here made to the statement of facts in that case, which was sufficiently similar for the purposes of this opinion. In addition to the facts stated in the Washington case, it is sufficient to say that there was ample evidence to prove the charge as made in the indictment.

I. The defendant filed a plea in abatement to the indictment which, in the record before us, is called a motion to quash. This plea was filed and disposed of before the severance, and attacked the indictment *418on the ground that the grand jury that returned it was not legally summoned and therefore because of the irregularities in its selection it was an unlawful body and the indictment invalid. The action of the court in overruling this plea in abatement was considered and approved in the case of State v. Washington, supra, and need not be further discussed in this case.

II. Upon the overruling of the defendant’s plea in abatement, a motion to quash the indictment was filed, alleging the grounds (1) that the indictment was indefinite, vague and uncertain, and (2) that it was duplicitous in that it charged two separate and distinct offenses in one count. The motion to quash was overruled, and the defendant has properly preserved his exceptions for review on this appeal.

The motion to quash the indictment was properly overruled. The statute upon which the prosecution was based forbids the setting up or keeping of any gambling table or gambling device, etc. If the same person violates the statute by keeping more than one table, at the same time and place and as one transaction, there is no more reason for dividing such act into so many separate and distinct felonies as there were tables than there would be for making the number of felonies equal the number of animals stolen under the statute making it grand larceny to steal “any horse, mare, colt,” etc. It is a felony to steal one horse, but the theft does not amount to two felonies because instead of one two are stolen. If the accused, as part of the same transaction and with the same felonious purpose, sets up and keeps two gambling tables, whether the same or different in kind, no valid reason can be given why he may not be prosecuted for such act as if he had set up and kept but one. Upon the trial of the case, if it should be developed by the evidence that the tables were not set *419up or kept as one transaction, at the same time and place, then the State should he required to elect upon which table it would ask a conviction.

The complaint of vagueness and uncertainty in the indictment is too refined and technical to be seriously considered as a sufficient cause for reversing the judgment and granting a new trial. Whether dice were played upon one table only and cards upon the other, or whether both dice and cards were used upon either table indiscriminately, was a matter of evidence, and it does not follow as a question of law that the indictment was vague and uncertain by reason of those facts.

III. Section 7342, Eevised Statutes 1909, of the jury law in force in the city of St. Louis, exempts from jury service, among others, persons otherwise qualified who are in the employment of any railroad company, and it is made the duty of the jury commissioner to omit from the list of jurors all persons found to be exempt from such service. It is further provided in the same section that it shall be the duty of the court to excuse from service as a juror any person whose voir dire examination discloses that his name should not have been placed on the jury list when such person is challenged for cause by any party to the suit.

Three of the talesmen on their voir dire examination testified that they were railroad employees, and the defendant challenged them for such cause. The court overruled the challenges and appellant, having-saved his exceptions to such rulings, assigns error. Technically appellant did not bring his challenges for cause within the letter of the statute for, although it appeared that the jurors were in the railroad service when examined in court, it does not follow that they were in such service and therefore exempt at the time when placed upon the jury list by the commissioner. *420But, waiving that question, there is nothing in the record to show that such jurors were not qualified to sit as jurors in the case except for the statute exempting them from being subject to jury duty, which may be regarded as directory, and as the defendant was not prejudiced by such ruling this court would not be authorized to grant a new trial upon that ground. We do not regard the case of Wiliamson v. Transit Co., 202 Mo. 345, as in conflict wjth the views herein expressed. While it would have been the safer course had the court sustained the objections to the jurors and thus have eliminated any question as to their qualifications, yet, for the reasons given, we must hold against the appellant upon this point.

IY. Many objections were made and exceptions saved to the rulings of the court in the admission and exclusion of testimony, and such rulings are now urged as grounds for the reversal of the judgment. We have decided, upon a ground hereafter to be noticed, that a retrial of this case will be necessary, and in view of the many recent decisions of this court in cases bottomed on the same statute as the case at bar, we do not consider it necessary to take up in this opinion each one of such alleged errors. It is sufficient to say that as the charge is for keeping, as well as for setting up, the gambling devices described, and necessarily implies a period and lapse of time in the commission of the crime, so as to make it a continuing offense, any facts and circumstances connected with the place where the gambling device is kept during such time, tending to prove the charge, or concerning the conduct of the defendant in the management of such device, or any other gambling device in the same room or place and conducted as a part of the same plan or scheme, should be admitted in evidence.

Y. The verdict of the jury was as follows: “We, the jury in the above entitled cause, find the defendant *421guilty of setting up and keeping a gambling device, as charged in the indictment, and assess his punishment at two years in the State penitentiary.”

Instruction numbered 1 in this case contains the ' same vice as the instruction condemned in the case of State v. Washington, supra, decided at the present term of this court. Under this instruction and the verdict returned the jury may have convicted the defendant of keeping either of the two tables charged, or some of the jurors may have agreed to a verdict of guilty as to one table, while the other members reached the same result as to the other table. The setting up and keeping of either table was an offense, and it cannot be determined from this record which of the tables charged the defendant was found guilty of setting up and keeping. The defendant is entitled to a concurrence of the minds of the twelve jurors upon one definite charge of crime, and the verdict must be definite and responsive to such charge.

For the reasons and under the authorities set forth in the Washington case we are constrained to hold the instruction was erroneous and in consequence thereof the verdict was indefinite and uncertain. For the reasons given the judgment is reversed and the cause remanded.

Ferriss, P. J., and Brown, J., concur.