In a first amended information appellant was charged with the commission of the crimes (1) promoting gambling in the second degree in violation of § 572.040, RSMo. (eff. Jan. 1, 1979); (2) gambling in violation of § 572.020.1; and (3) resisting arrest in violation of § 575.150. By the verdict of a jury, appellant was acquitted of the gambling charge, but was found guilty of promoting gambling and resisting arrest. On each of thе guilty verdicts the court sentenced appellant to $500 fines and to jail sentences of 30 days, to run concurrently, but execution of the jail sentences was suspended and he was placed on probation for two years under the supervision of the Missouri Department of Probation and Parole.
Appellant operatеs a restaurant in Mary-ville, Missouri, catering to daytime trade, known as Terry’s House of Heartburn. On April 15, 1985, after the restaurant had closed and its front door was locked, six city police officers arrived at its rear door, which was unlocked or ajar, to execute a search warrant. Officer Smail then heard a male voice say, “Come on, five. Got to have a five,” but he could not identify the voice. The officers went on into the restaurant where a total of nine persons were present — three employees in the front, and six persons in the rear storage area where appellant was seated at a table drinking a cup of coffee. Smаil testified that on entering the restaurant he saw a large amount of money on the table, but when he looked back there was only a five dollar bill on it, and the individuals had money in their hands. Besides appellant, only Rick Holaday and perhaps Gayle Harmon were seated at the table. The others, except Terry Allen, were standing close to it where they could touch it. Smail found a set of dice in Harlan Dredge’s pocket, and another set in a table drawer. Smail told the officers to collect any loose money that the men had in their pockets.
The storage room table was covered by a cloth, and on it was a “U” shaped wooden piеce described as a back board, which appellant testified was a “tater bin” which was used to prevent potatoes from rolling off the slanted table as they were being peeled. Officer Smail did not see any dice being rolled, any bet being placed or any money changing hands.
Section 572.040 provides: “A person commits the crime of promoting gambling in the second degree if he knowingly advances or profits from unlawful gambling or lottery activity.” The state here concedes that the evidence does not show that appellant profited from gambling, but contends that he “knowingly advanced” unlawful gambling.
Section 572.010 has this definition: “[A] person ‘advances gambling aсtivity’ if, acting other than as a player, he engages in conduct that materially aids any form of gambling activity. Conduct of this nature includes but is not limited to conduct directed toward the creation or establishment of the particular game, lottery, contest, scheme, device or activity involved, toward the acquisition or maintenanсe of premises, paraphenalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement or communication of any of its financial or recоrding phases, or toward any other phase of its operation. A person advances gambling activity if, having substantial proprietary control or other authoritative control over premises being used with his knowledge for purposes of gambling activity, he permits that activity to occur or continue or makes no effort to prevent its ocurrence or continuation.”
Appellant first contends that as a matter of law he did not advance gambling on April 5, 1985, because there was no evidence of gambling activity on the Heart *402 burn premises, which is a requirement for the crime of promoting gambling under § 572.040, supra. Appellant seeks to bolster the contention by arguing that hе was acquitted of gambling; five witnesses testified that there was no gambling on that day; and the police officers did not observe any gambling on that date. The contention and argument ignores the circumstantial evidence presented by Officer Smail that he heard from outside a voice say “Come on, five. Got to have a five” [an exрression commonly known, as the jury could find, to implore dice to roll a previous number]’ Smail saw a large amount of money on the table, but when he looked back only a five dollar bill was on it, and the individuals standing close to the table then had money in their hands; and Smail found a set of dice in Dredge’s pocket. There was also a table covered with a cloth, and a backboard, which the jury could also find was a device for stopping the roll of dice.
The jury was given Instruction No. 11, which followed the definition of “advancing gambling activity” contained in § 572.010, supra, the first of which is the engaging in conduct that materially aids any form of gambling activity. That conduct, as the jury could find, was the creation or establishment of the game, device, the maintenance of premises, the paraphernalia and equipment (the table, cloth, and backboard), and the inducement of persons present to play the game. Indeed, although the jury did not convict appellant of gambling (he was just sitting at the table drinking coffee), certainly it could have found that activity was going on, and it was entitled to consider testimony that gambling had been going on on previous occasions. Employee, Julia Partridge, testified that she had seen persons shoot craps before that day, sometimes on a regular occurrence, and it would not be unusual for there to be a сrap game going on, or for it to take place where the table was located. The state points out that it is not an element of the offense of advancing gambling that gambling actually be going on. That is correct, considering the first definition of the statute as to conduct which materially aids gambling activity. Appellant’s ownershiр, operation and control over the Heartburn premises was fully proved, so as to accord with the last sentence of § 572.010, supra.
It is said at page 54 of Vol. 41A V.A. M.S., Comment, that the definition of “advance gambling activity” is taken from Michigan Revised Code § 1601(a) Final Draft 1967. Research has shown that the Michigan Legislature has never adopted this draft, sо there are no precedents from that state as to the issue here. Other states have similar statutes, however. In
State v. Hiller,
Appellant next says that the alleged game, even if it had occurred, was a social game and not of the type made criminal by §§ 572.010 and 572.040, which prohibit ex-ploitive gambling only. Appellant was not convicted of gambling. Rather, he was convicted of promoting gambling by advancing gambling activity, which is an entirely different and separate offense than a gambling offense proscribed by § 572.020. It was for the jury to determine under all the facts if apрellant’s acts were sufficient to constitute material aid to any form of gambling activity, and whether the game or games conducted on the premises were of a private, social nature. It is said in the comment to § 572.010 that one of two kinds of exploitive gambling is “advancing” unlawful gambling activity, which is certainly the case under the facts here.
*403
Finally, appellant says that one does not advance gambling activity merely by being a “player”. The evidence here shows that appellant rendered material assistance to the establishment, conduct or operation of the particular gambling activity beyond being a mere player as that term is defined in § 572.010(8). He cites
State v. Fredrickson,
It is ruled that the state made a prima facie case that appellant promoted gambling by advancing gambling activity as defined in the statute, and the trial court did not err in submitting the issue to the jury. That, however, doеs not end the matter. During the trial Larry Wayne Jackson, Maryville’s director of Public Safety testified that prior to the issuance of a search warrant of the Heartburn restaurant, he received two telephone calls from unidentified females in reference to gambling that was going on at the restaurant. The first caller asked him why he wasn’t dоing something about it, and proceeded to tell him that there were dice games going on there and large amounts of money were being lost and transacted at the time, and that her husband had participated in games there and had lost large amounts of money, “and that if the Public Safety Department didn’t do something about it, then she was going to call the Attorney General’s office to see if she could get some help.” In a matter of minutes, the second phone call was received by Jackson in which the woman told him that her husband had also participated in gambling games at Terry’s House of Heartburn and that her husband had lost full payroll checks in gambling games that werе going on there, and she wanted to know why he had not done something about these.
Appellant objected to both telephone calls on the ground of hearsay and that he had no opportunity and would get no opportunity to cross-examine the individuals, and that it was prejudicial and irrelevant. The court overruled the objеctions stating that it would instruct the jury that the phone call(s) did not prove the truthfulness of what may have happened, but only to explain what the witness subsequently did; that he acted upon that. Instruction No. 13 was given on that subject.
In
State v. Kirkland,
As to the charge of resisting arrest, the evidence is this: after the officers had entered the storeroom, the individuals who had money in their hands started putting it in their pockets. Officer Smail told the officers to collect the money in the pockets, and when they began doing that an encounter with appellant occurred. He began arguing with the officer over whether he was going to get a receipt at the time. Officer Crow went to talk to appellant who became boisterous and belligerent. According to Smail, appellant pulled away from Crow. There was some profanity and a scuffle started, but Smail could not see it too well. He hollered at Crow and told him, “Go ahead and cuff him, take him down to the station. We’ll get his property there.”
Officer Crow first went to the front door of the restaurant, and finding it locked, admitted another officer standing outside it. Crow tried to explain to appellant to let them go ahead and do their job, but hе again became boisterous and would not comply. It had been prearranged that if there was a problem it would be alleviated by placing the subject under arrest and transporting him. Crow attempted to do that. Appellant drew his arm back after Crow had grabbed hold of it and told him to place his hands on the wall, at which point hе yanked away from Crow. “During that course his hand struck me across the face. Whether it was in a manner he meant to do that, I don’t know. I received a small cut under my eye.” Crow then held one of appellant’s arms, and assisted by two other officers he was placed in handcuffs “as by procedure” and transported down to Public Safety. On сross-examination it was developed that after Crow had appellant by the arm, another officer held him by the throat, and he was held against the wall until they were able to handcuff him behind his back.
Section 575.150.1 provides, “A person commits the crime of resisting or interfering with arrest if, knowing that a law enforcement officer is making an arrest, for the purpose of preventing the officer from effecting the arrest, he: (1) resists the arrest of himself by using or threatening the use of violence or physical force as * *
Giving to the state the benefit of the evidence in its light most favorable to it, as this court must do,
State v. Powell,
The judgment of promoting gambling in the second degree is reversed and the case is remanded for new trial upon that charge. The judgment of resisting arrest is affirmed.
All concur.