234 Mo. 566 | Mo. | 1911
— -Defendant was indicted and convicted of the crime of feloniously setting up and keeping a poker table in the basement of a saloon in the city of Joplin, Missouri, and permitting parties to bet and play upon said gaming table. From a judgment of the circuit court of Jasper county fixing his punishment at a jail sentence of six months, he appeals.
The evidence shows that the constable of G-alena township in Jasper county, upon going to the basement nuder a saloon on Sixth street in the city of Joplin, found the door of said basement locked; but gained admittance by knocking. Entering this basement, he found the defendant and two other persons seated at a table. In front of defendant were some playing cards, a large stack of poker checks and about thirty dollars in silver coins. Five cards had been dealt out to and were lying in front of each party sitting at the table, and there were also poker checks on the table in front of each of said parties. The constable arrested the defendant, took into his possession all the cards, poker checks and money found on the table; and up to the date of the trial, some ten months later, no one had claimed same.
Defendant did not go upon the stand, and offered no evidence in his behalf.
The State called as witnesses the parties who were found sitting at the table with defendant in the aforesaid basement; and each of them testified that on the night of the constable’s-raid they had not played any game, but were merely sitting around the table talking and shuffling the cards and poker checks; that the' game of poker was usually played with five or three cards for each player. One of these parties found at the table with defendant, testified that he went into the basement because he saw a light down there, and
1. Defendant contends that the foregoing evidence was not sufficient to warrant the court in submitting the case to the jury.
2. Defendant also asks a reversal of the judgment because of alleged improper remarks by the prosecuting attorney in his address to the jury, which remarks will be noted in our opinion.
OPINION.
It is true that the foregoing evidence is rather meagre, particularly as to defendant having set up and kept a poker table; yet the evidence of one of the witnesses that defendant had been running seven-up tables in this basement prior to his arrest raises a presumption that he still had charge of that place. [Zwisler v. Storts, 30 Mo. App. 163; 16 Cyc. 1053.]
The defendant’s position at the table indicated that he had charge of most of the poker checks and apparently had sold some of same to the other players. The further fact that up to the time of the trial he had not set up any claim to the money found stacked on the table in front of him, raises a presumption that this money was at the time of defendant’s arrest being used by him for the unlawful purpose of gambling. We think the foregoing evidence made out a prima facie case for the State. [Butler v. State, 2 Ga. App. 623.]
Gambling, like the illegal traffic in intoxicating liquors, is usually carried on behind locked doors, or under some kind of mask, in order to make detection difficult; so that.courts are "not disposed to disturb verdicts of this character if supported by substantial evidence, although such evidence be wholly circumstantial in its nature. [City of St. Louis v. Sullivan, 8 Mo. App. 455; Harmon v. State, 120 Ga. 197; State v. Boyer, 79 Ia. 330; Underhill on Crim. Evidence (2 Ed.), sec. 473.]
In the course of his remarks to the jury, the prosecuting attorney said, “If you believe in strengthening and holding up the strong arm of the grand jury in Jasper county, you will return a verdict of guilty, guilty, guilty!”
Defendant objected to “the statement of the prosecuting attorney about upholding the hands of' the grand jury,” and asked that he be reprimanded in the presence of the jury. The court sustained the objection, but did not reprimand the prosecuting attorney. Defendant saved no exception to the failure of the court to reprimand the prosecuting attorney.
The defendant having failed to except to the court’s failure to administer a more pointed rebuke to the transgressing prosecuting attorney, we do not deem it our duty to reverse the judgment on account' of his improper reference to the indictment as evidence of defendant’s guilt. To bring such errors before us for review, they should be excepted to at the time. [State v. McMullin, 170 Mo. l. c. 632.; State v. Phillips, 233 Mo. 299.]
Finding no reversible error in the record of the trial court, its judgment is affirmed.
