36 Mo. App. 29 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The defendants, two boys aged about fourteen and fifteen years respectively, were jointly indicted under the statute against gambling. The indictment charged that at a time and place named they did unlawfully bet a sum of money; to-wit: $1.50, upon a game of cards, commonly called seven-up, then and there played by means of a certain gambling device, to-wit: A pack of cards adapted for the purpose of playing games of chance for money and property, against the peace and dignity the state.
They were arrested under the indictment on the sixth of February, and on the same day entered into a recognizance for appearance at the next term of the circuit court. This term of the court began on the twentieth of February.
When the case was called for trial, the defendants made the following affidavit for continuance : “ Defendants cannot safely proceed to the trial of this cause at the' present term of this court, on account of the absence of Sam Trott and Sam Kline, who are material witnesses in the trial of this cause. That if said witnesses were present would swear, that they were present at the time and place which it is alleged that said game of chance was played; and know that said game of cards, commonly called seven-up was played by said defendants as a matter of amusement, and that there was no money, property, or anything of value bet on said game. That defendants believe said testimony to be true, and they know of no other witnesses by which they can prove the same facts, whose testimony can be as readily procured. That due diligence has been used to obtain the testimony of said witnesses. That defendants were arrested
The bill of exceptions recites that, “the state resisted the application for a continuance and offered in evidence against the application the recognizance of the defendants, given February 17, 1888, in Stone county, for their appearance on the first day of the present term of this court, to-wit: February 20, 1888,” etc. The court overruled the application for a continuance and the state being ready ordered the trial to proceed. To this ruling the defendants excepted. This was on the second day of the term.
The refusal to grant this continuance was assigned by the defendants in their subsequent motion for a new trial, and in opposition thereto the state offered, for the purpose of showing that the defendants had not used proper diligence, an affidavit of the deputy sheriff who arrested them under the capias, to the effect that when he arrested them and they entered into bond for their
I. The general rale is, that the granting or refusing of a continuance is a matter which rests in the sound discretion of the trial court, which discretion will not be revised on appeal, unless it plainly appears that it has been abused. Affidavits for continuance are often drawn and presented for the mere purpose of securing delay and they are hence closely scanned and as a general rule convictions will not be reversed for the refusal of continuances where the affidavits are deficient in any substantial particular. The affidavit in this case is drawn in compliance with section 1884, Revised Statutes, and is sufficient unless it fails to make it appear that due diligence was not used to procure the absent witnesses. As they resided but twelve miles from the court house and as the defendants werelet to bail immediately upon their arrest, which is shown to have been two weeks before the convening of the court, and as the deputy sheriff, according to his uncontradicted affidavit, advised them of the manner of procuring their witnesses, it does not appear that due diligence was used by them in procuring them. Was such diligence excused by reason of the fact deposed to in the affidavit that they had no opportunity to employ counsel until the day before the trial, that is, until the first day of the court % If there had been anything difficult or complicated in their defense, the inability to procure counsel until that time may have afforded a sufficient excuse for the want of diligence in procuring the witnesses’ names. But as the witnesses were expected to prove a fact so simple and obvious as that the defendants did not really wager any money or property on the
II. The indictment is challenged as not being good under any statute of this state. It seems to have been drawn under the statute against betting on gambling devices, which provides that “every person who shall bet any money or property upon any gaming table, bank or device, prohibited by the preceding section, or at any or upon any other gambling device, * * * shall be adjudged guilty of a misdemeanor,” etc. It is to be observed that the indictment as already set out charges the defendants with having bet the sum of $1.50 upon a game of cards called seven-up, then and there played, by means of a certain gambling device, to-wit: A pack of cards, adapted for the purpose of playing games of chance for money and property. In State v. Herryford, 19 Mo. 377, which was an indictment under the preceding section of the same statute as it then stood on our statute book, it was held that cards were a gambling device within the meaning of the statute and that an indictment charging that the defendant “did wilfully permit a certain gambling device, commonly called cards, adapted, devised and designed for the purpose of playing at games of chance for money and property, to be then and there used, for the purpose of gaming in a certain house, then and there being
III. While the defendant Cloud was being examined as a witness the state’s attorney asked him on cross-examination : “Did you ever play cards before for money?” Before his counsel could object, Cloud answered: “Yes.” Objection was then made to the question, which the court sustained and the court orally instructed the jury not to consider it as evidence. It is well settled in this state that where an accused person elects to take the witness stand in his own behalf, his cross-examination must be confined to matters which were touched upon in his examination in chief, and that it cannot extend beyond this, although the question put may pertain to the issues. State v. Chamberlain, 89 Mo. 129; State v. McGraw, 74 Mo. 573; State v. Patterson, 88 Mo. 88; State v. Douglas, 81 Mo. 231; State v. Porter, 75 Mo. 171; State v. McLaughlin, 76 Mo. 320; State v. Turner, 76 Mo. 350. The question, thus put to the witness by the state’s attorney, was not only not pertinent to the witness’ direct examination, or to the issues, but it was inadmissible as evidence against him on any theory, and it thrust into the minds of the jurors an irrelevant matter which was highly prejudicial to the accused. The state’s attorney must have known that the answer called for by the question was inadmissible, and, if he knew it, the putting of such a question to the accused was so unfair and improper that it may
For this misconduct of the prosecuting attorney, the judgment will be reversed and the cause remanded.