53 Mo. App. 32 | Mo. Ct. App. | 1893
Lead Opinion
— The appellant was indicted and convicted of card playing on Sunday, under the provisions of section 3854, Revised Statutes, 1889. The indictment charged the appellant with unlawfully playing cards with “Lark Gordon, R. Steinhoúser and R. Birkenkouer on .the first day of the week commonly called Sunday.”
The state introduced one witness on the trial, who testified as follows: “I saw the defendant [appellant] playing cards on Sunday at the time specified in the indictment in Howell county, Missouri. He was playing with Bob Lowery, Lark Gordon and Steinhouser. These were the only parties in the game.”
The defendant then prayed the court to instruct the jury as follows: “The court instructs the jury that, unless they believe from the evidence that the
The court then gave the following instruction on the part of the state: “The court instructs the jury, if you believe beyond a reasonable doubt that the defendant, in Howell county, Missouri, at any time within one year before the thirtieth day of April, 1891, did then and there play at a game of cards with Lark G-ordon, R. Steinhouser, R. Birkenhouer, or with any one or more of said persons, on the first day of the week commonly called Sunday, you should find him guilty and assess his punishment,” etc. To the giving of this instruction the defendant objected and excepted at the time.
The point, relied on to sustain the instruction requested by appellant and declined by the court, and alleged as error in the instruction given by the court on behalf of the state, was that there was a variance shown in the proof between the names and persons engaged in the card playing and the names and persons charged in the indictment, in this, that “Bob Lowery” was a party to the game, instead of “R. Birkenhouer.” As to all the other parties to the game, the proof corresponded exactly with the statement made in the indictment, and it was clear that the game was played as charged in the indictment.
By the terms of section 4114, Revised Statutes, 1889, it is provided: “Whenever, on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian
In the case at bar the fact, that there was a variance between the indictment and the evidence as to the "name” of only one of the four players, is not material to the proven fact that the game itself was played, nor did it prejudice defendant in any defense showing he was not a party to the unlawful act. The trial court did not find as it might, if the fact had warranted it, that the variance affected the merits of the ease or prejudiced the defendant, but on the contrary instructed the jury that, if they believed the defendant and "any
The judgment in this case is affirmed.
Concurrence Opinion
(concurring.) — I concur in the result reached by Judge Bond, but I cannot agree to his treatment of the main question. The defendant was properly convicted, because it was unnecessary to allege or prove the names of the persons with whom he played. Mr. Bishop says that, in drawing an indictment for playing cards, it is the safer plan to give the names of the players in the absence of a decision to the contrary in the state where the indictment is found. Bishop’s Directions and Forms, sec. 491, No. 1. In State v. Ames, 1 Mo. 525, defendant was indicted for betting at the game of poker. It was held that it was not necessary to give the name of the party with whom the bet was made. In Page v. State, 6 Mo. 205, the plaintiff in error was indicted for vending clocks • without a license. It was decided by the court that it was not necessary to allege to whom the clocks were sold. In the case of Torney v. State, 13 Mo. 456, Torney was indicted for betting at a game of cards. The indictment failed to give the name of the party with whom he played or made the bet, and the supreme court sustained the conviction, although the point as to the sufficiency of the indictment was not raised. So, in an indictment for selling liquor without a dramshop license, it was held that the name of the party to whom the liquor was sold need not be stated. State v. Ladd, 15 Mo. 430. So, in an indictment for selling intoxicating liquors on Sunday, the name of the purchaser need not be alleged. State v. Brawn, 83 Mo. 480. If it were lawful under any circumstances for a person to play cards on Sunday, then I could see a very good
I do not think that section 4114 of the statute (Revised Statutes, 1889) can have any application. If the evidence had shown that Bob. Lowery was known by the name of “R. Birkenhouer,” then we would have a mistake in the name of a person mentioned in the indictment. But the evidence and the instructions show that Birkenhouer and Lowery are different persons. This presents a case of variance as to persons, which is not covered by the first clause of the statute. If A be charged with the murder of B, he cannot be convicted for the murder of C. In the cases of the State v. Barker, 64 Mo. 282, and State v. Nelson, 101 Mo. 477, which are cited and relied .on by Judge Bond, there was a mistake in the names of the owners