239 Mo. 591 | Mo. | 1912
— Defendant was convicted in the circuit court of the City of St. Louis of having set up and kept a crap table and having induced, enticed and permitted divers persons to bet and play thereon.
The evidence tended to show that a crap game was conducted at 2309 Chestnut street, St. Louis, for many months prior to the time the indictment was returned. The game was played on a covered pool table in the basement of a building occupied by the Modern Horseshoe Club, of which club defendant was a member. Defendant himself testified that a crap game was there conducted in the manner described, but denied having anything further to do with it than occasionally to participate as a player. There was evidence, however, that he was practically constantly in attendance, and that he “cut off” a nickel out of every bet made, and that this “rake-off” he delivered to the president or the general “manager” of the club’s affairs, who appeared at interval's to receive it. Defendant also settled disputes as to the rules of the game, kept order, and adjusted differences of various kinds which arose among the players. An expert was called and detailed the intricacies and mysteries of “crap-shooting. ’ ’
I. The names of eight witnesses were indorsed on the indictment. During the examination of the talesmen on their voir dire, the assistant circuit at
No other witness whose name was indorsed on the indictment was called, but five of the six others named during the voir dire examination of the jury were called, and, over defendant’s objections and exceptions, testified in the case.
On this state of the record it is contended that the court erred in admitting the testimony of these witnesses.-
The statute (Sec. 5097, R. S. 1909) requires that “When an indictment is found by the grand jury, the names of all the material witnesses must be indorsed upon the indictment” and provides that while “other witnesses may be subpoenaed or sworn by the State, . . . no continuance shall be granted to the State on account of the absence of any witness-whose name is not thus indorsed on the indictment, unless upon the affidavit of the prosecuting attorney showing good cause for such continuance.”
While this statute has been frequently construed by this court, in no previous case has the situation presented been like that in this. Hero the name of no
Though the statute expressly provides that witnesses other than those whose names are indorsed may be subpoenaed and sworn and does not expressly provide, for lack of compliance with its provisions, any other penalty than the limitation upon the State’s right to a continuance, this court, since 1884 (State v. Roy, 83 Mo. l. c. 269, 270), has consistently held that the statute was passed for the purpose of giving to “the person criminally charged the opportunity of knowing who were his accusers, and by whom the State expected to establish the charge preferred, in order that he might prepare, not only to meet the charge, but'those upon whom the State relied to prove it.”
Thus interpreting the statute in harmony with its evident spirit, this court has frequently announced and applied the rule that no unfair advantage of a defendant will be permitted to be taken by intentional concealment of the names of the State’s witnesses. An ambuscade of this kind will not be tolerated. [State v. Nettles, 153 Mo. l. c. 470; State v. Shreve, 137 Mo. l. c. 5; State v. Myers, 198 Mo. 247.]
On the other hand, if the defendant is advised in advance (for instance, by an entire failure to indorse the names of any witnesses) that the State is not fighting in the open, and elects to enter the contest under such conditions, he cannot, for the first time, after being defeated, complain. [State v. Griffin, 87 Mo. l. c. 612; State v. O’Day, 89 Mo. l. c. 560.]
In this case defendant and his counsel were advised in open court, prior to the swearing of the jury, that the witnesses who were used would be used on the trial and no suggestion was made of surprise, nor was any motion to quash, request for delay, or demand for continuance made. On the contrary, not until the jury had been sworn and defendant thus put in jeopardy, and the witnesses called, did defendant suggest that he
Having been notified by the announcement of the-assistant circuit attorney before the jury were sworn, that certain witnesses whose names were not on the indictment were to be called for the State, defendant had all the notice he would have had if the names had at that moment been added to those on the indictment, so far as concerns the question now before us. The trial court doubtless would have required the indorsement of these additional names had defendant moved for that purpose. After the announcement mentioned, we think that, lacking some motion upon defendant’s behalf, the court was justified in treating the question raised after the jury was sworn exactly as if all the names had been indorsed upon the indictment and that this record shows no error because of the fact that it did so treat it.
That the State would not be-permitted to purposely deceive defendant to his prejudice by taking part of its witnesses before the grand jury and indorsing their names upon the indictment and then in the trial, and without warning; substitute an entirely new list of witnesses, goes without saying. When notified that the witnesses were to be used, defendant had the right to apply for, and in this case it would have been the duty of the court to have given him, on a proper showing, sufficient time to prepare to meet their testimony. He
It is to be presumed that the indictment was founded upon the testimony of the witnesses whose names were indorsed upon the indictment, but it will not be presumed, in the light of their testimony, that the witnesses called were testifying to'an offense different from that for which the indictment was found, and this is particularly true in view of the conclusion reached in a subsequent paragraph as to the nature of the offense of which defendant has been convicted. The testimony of the witnesses called shows that the offense charged was identical with that to which these witnesses testified even as to the, names of the players so far as they were designated by name in the indictment. Under the circumstances there was no error in the course taken by the trial court.
II. The first instruction given by the court is said to be erroneous because it “omits the element of reasonable doubt,” and the case of State v. Helton, 234 Mo. 559, is cited in support of this contention. The instruction mentioned sets out the facts necessary to constitute the offense charged and tells the jury that if they find these facts they should find the defendant guilty. In another instruction the jury are fully instructed as to reasonable doubt. It has long been held that it is not necessary to append to every instruction given a clause announcing the rule as to the necessity of the jury being convinced beyond a reasonable doubt before they can convict. The decision in State v. Helton, supra, affected that holding not at all. In that case the facts predicated in the instruction condemned were all consistent with the defendant’s innocence and it was for that, and the additional reason
III. Another ground on which the instructions are assailed is that the court submitted the case on the theory that defendant was guilty whether he acted alone or in concert with others.. It is insisted in the briefs that the evidence tended to show no.more than that “the defendant was himself the principal and there was no other person committing the alleged crime whom he aided, abetted, assisted or encouraged.” It is not contended that the statute (Sec. 4898, R. S. 1909) is not broad enough to authorize defendant’s conviction in this case, whether he was found to be a principal, principal in the second degree, or accessory-before the fact, but merely that there is no evidence tending to show that he was, if guilty at all, other than the principal actor and sole offender. A reference to the statement of the facts of the case will disclose our reasons for overruling this contention.
IY. The indictment alleged, among other things, that defendant induced, enticed and permitted certain named persons, and others whose names were to the grand jury unknown, to bet and play “on and by means of the gambling device,” which he is charged with having set up and kept, corresponding in this respect with the information in the case of State v. McKee, 212 Mo. l. c. 142. The evidence tended to show that the game set up and kept at 2309 Chestnut street was run continuously for months prior to the -finding of
It is practically conceded that it was not necessary to set out in the indictment the names of the persons who played, but it is insisted that since the names of some of them are set-out a particular offense was thereby individuated, and the State having thus particularized the offense in the indictment, the court in its instructions should have advised the jury that unless they found defendant guilty as of the particular time when the persons named in the indictment played, they should acquit him and that it should not, in the circumstances mentioned, have instructed the jury (as it did) to return a verdict of guilty in ease they found defendant had set up and kept the crap table at any time within -three years prior to the return of the indictment.
It is not contended that evidence as to defendant’s conducting the game at other times than those when the persons named in the indictment played was inadmissible, and such evidence was received without objection. No motion to elect was made at’ any time and no instruction restricting the jury to a particular time was asked by defendant.
It will be observed that the contention now made, which appears in this case for the first time in the reply brief, depends upon the assumption that the offense charged and proved was not a continuing offense but that each time or day on which the table was kept and played upon was a separate and distinct crime. If the offense was a continuing one and charged as such it was not only unnecessary to name the persons who played but, if some were named, and that allegation and the one that other unknown persons played was fully proved, as in this case, it makes no difference that these persons, known and unknown, were not shown to have
The attempt to employ a formal continuando in this case was not a skillful one (Bishop’s Directions and Forms, sections 82, 83), but an offense continuous by nature may be charged as of one day and proved as a continuing offense provided no abatement is directly sought {Id., section 81), and such is the better pleading in such case.
That fragments of a formal continuando appear in the indictment is of no consequence, and they may be treated as surplusage if the offense is continuing in its nature and therefore provable under a simple charge (also made) as of a particular day. [Bishop’s Directions and Forms, sec. 82; State v. Lee, 228 Mo. l. c. 493, 494; State v. Groves, 21 R. I. 253.]
By this rule the indictment in this ease was therefore sufficient as a charge of a continuing offense and evidence was admitted on that theory and the whole case, from beginning to end, tried in that fashion. Defendant’s failure to move an election at any time and his failure to ask an instruction restricting the jury to a particular occasion or admonishing them that all must agree upon one particular occasion on which he offended, sufficiently indicate his position during the trial.
In the case of State v. Lee, supra, this court held that the indictment charged a continuous offense and practically committed itself to the doctrine that the offense of setting up and keeping a gaming'device, etc., may be prosecuted as a continuing one. In that case the principal instruction was like that in this case and authorized the jury to convict if defendant had set up and kept, etc., a certain gaming' device within three years prior to the finding of the indictment, there being evidence that Lee operated the device for months.
The offense having, in effect, been charged in the indictment, being in its nature and having been tried as a continuing one, there could be but one punishment (Hinkle v. Commonwealth, 4 Dana, 518), and any other prosecution of defendant for an offense committed by the same means at the same place prior to the filing of the indictment in this case is barred by this conviction. .
It is not meant by what has been said that a gaming device must be kept for a year, a month, a week or a day before the keeper becomes amenable to the penalties of the statute; nor that it is not possible for two separate offenses to be committed within a given time by the same means at the same place by the same person. [State v. Lindley, supra.]
In this case, however, defendant has been charged, tried and found guilty of a continuing, offense and cannot complain that the trial court did not apply rules applicable solely to cases in which there is evidence of separate and distinct offenses. . The naming of certain persons in the indictment did not serve in this case to necessitate the restriction of the State’s evidence to occasions on which such persons played, and
V. While the trial court might well have given a specific instruction to the effect that defendant could not be convicted in case he did no more than to participate in the game as a player,-we do not think its failure to do so, in the circumstances of this case, constitutes reversible error. In the instructions given the jury was told, among other things, that “the mere presence of a person at the time of the commission of an offense will not justify his conviction as a principal unless the evidence shows that he was present aiding, abetting, encouraging or assisting the person who did actually commit the offense,” etc., and, in the preceding paragraph, that it was sufficient “if the evidence satisfied the jury beyond a reasonable doubt that the defendant, William Lawson, or other persons acting jointly with him, had charge of and control of” the device.
Taking the instructions as a whole, we are of the opinion that while they are not entirely above criticism in some respects, yet the jury could not have been misled in the respect mentioned. The judgment is affirmed.
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— The foregoing opinion by Blair, C., is adopted as the opinion of the court.
