267 Mo. 249 | Mo. | 1916
Lead Opinion
On the 2nd day of March, 1914, the prosecuting attorney of Buchanan County filed in the criminal court of that county an information, which, omitting formal parts, is as follows:
“That at said county Richard Wade at 118% North Fifth Street, in the city of St. Joseph . . . did then and there wilfully, unlawfully and feloniously set up and keep a certain table and gambling device commonly called a crap table, which said crap table was then §nd there and on said other days and times a gambling device adapted, devised and designed for the purpose of playing games of chance for money and property; and did then and there . . . unlawfully and feloniously induce, entice and permit certain persons, to-wit ... .to bet and play at and upon a game played on and by means of .such gambling device. ’ ’
On this information defendant was tried and convicted, and his punishment assessed at four years’ imprisonment in the penitentiary. The judgment was affirmed Hy Division Two, but, owing to the dissent of Fares, J., and upon defendant’s application, the cause was transferred to Court In Banc.
The evidence adduced by the State tends to prove that defendant, as tenant, occupied and had under his exclusive control, the basement of the premises designated 118 North Fifth Street, in the city of St. Joseph. The particular basement room in which the alleged gambling device was set up and kept was under a restaurant fronting on Francis street, the sole available entrance thereto being under a barber shop at 118 North Fifth Street. From this initial point of entrance a tunnel or underground passageway led to the room-in question. The tunnel was equipped with a series of doors, which closed automatically through the opera
On the 7th of February, 1914, when this room was raided by the officers, thirty or forty persons were found in the room, some of whom were engaged at the time in'playing what is called the “game of craps,” which is described as a game played with dice.- At that time there was about $300 in money found on the tables. One table was in charge of and being operated by Frank Dorsal, and the other by William Garnett, both of whom were in the employ of defendant. Defendant was at the cigar counter in another part of the room.
A deputy sheriff, who had been a police officer for fourteen years, and two of defendant’s employees,, testified that the premises and the entrance thereto were commonly known as 118% North Fifth Street. The evidence also discloses that defendant’s mail, and that of his employees, in accordance with his directions, was addressed to 118% North Fifth Street, and, when arrested, defendant gave this number as his address.
The State’s witnesses testified to their knowledge and familiarity with what is commonly known as • a “crap table,” and stated that the pool tables with the “crap lay-out” thereon were not such tables. All witnesses for the State testified, however, that the game , of craps was, in point of fact, played on such tables.
The defendant offered some evidence tending to. show that there was no such nrimber as 118% North
Defendant also offered a picture of a table which had been identified by the State’s witnesses as a correct representation of the table commonly known as a “crap table,” and this discloses no similarity between such a table and the one which the witnesses described as being kept by defendant.
“Every person who shall set up or keep any table or gaming device commonly called ABC, faro bank, E 0, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling, device, or at or upon any game played or by means of such table or gambling device or on the side or against the keeper thereof, shall, on conviction,” etc.
It will be observed that the Legislature first specifically names and denounces certain tables and gambling devices, thus giving them a legal signification, and then proceeds, in general terms, to level its pronouncement against “any kind of gambling table or gambling device adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device,” etc.
In construing statutes we .have so frequently applied the familiar rule of ejusdem generis, that we would not now be warranted in departing therefrom. We have said this doctrine meant that when an enumeration of certain specified things in a statute is followed by general words or phrases, such words or phrases of general description shall be deemed to mean things of the same class and kind, and not include things wholly different from those specifically mentioned, or otherwise expressed; that when general words follow particular words they must be construed as applicable only to the things of the same general
Although, as said by Judge Faris in State v. Solon, 247 Mo. 672, when discussing the present section (l. c. 683), “Clearly this section has been by construction strained almost to the breaking point,” nevertheless, this court has, at all times, declared, in determining the devices to which it is applicable, that it recognized the ejusdem generis rule.
In State v. Rosenblatt, 185 Mo. 114, Judge Gantt said: “ ‘Craps’ are not named and therefore do not have a legal signification within the meaning of the statute, but if prohibited at all must come within the general prohibition of the section. Conceding that all other gambling tables and devices not specifically named must, under the doctrine ejusdem generis, be of the same general class with those devices specifically named, we think there can be no doubt that ... a crap table is of that class.”
In State v. Locket, 188 Mo. l. c. 422, Judge Fox, in passing upon the same question approvingly quotes this language from Judge Gantt.
In State v. Gilmore, 98 Mo. 206, this court held that a pack of playing cards, although used for playing games for money or property, was not a gambling device within the meaning of this section, the court tersely stating that any other construction is condemned by the rule of ejusdem generis.
In State v. Lemon, 46 Mo. 375, the statute was declared inapplicable to a horse race; and in State v. Bryant, 90 Mo. 534, it was held that a gun and a target were not of a kindred nature and similar kind to those enumerated, and were, therefore, not within the purview of the act.
In the recent case of State v. Solon, 247 Mo. 672, it was held that the court will not take judicial notice that poker is a game of chance, and that where there is no evidence that the game of poker alleged to
In State v. Patton, 255 Mo. l. c. 261, the court said: “In the case of State v. Solon, supra, we labored to show the elements which distinguish the felony of setting up a gambling device, from those which go to make up the ordinary misdemeanor of gaming. We often find a dangerous twilight zone where the facts so imperceptibly shade into a felony on the one side and into a misdemeanor on the other, that it is almost impossible to distinguish the' line of demarcation. The Legislature has the right to say that a pack of cards carried by a traveler; a writing table, or a washstand in a guest room of an inn; an. idle hour, an idle friend or two and a game of five-cent ante, make a crime meet for the taint of felony and two years in the penitentiary. But they have not. so written it; neither will we. ’ ’
' From these cases it is clear that this statute is not broad enough to, and does not, include, the setting up or keeping of every and all kinds of gambling.deviees, regardless of their character, but is leveled against only those of a certain class.
We yield to the holding in the case of State v. Rosenblatt, 185 Mo. 114; State v. Lee, 228 Mo. 480; State v. Holden, 203 Mo. 581; and State v. Locket, 188 Mo. 415, that a table, duly marked and arranged for the purpose, on which the game of craps is played by means of dice for money or property, is within the purview of the section.
■We further find from the evidence in this case that the tables operated by defendant are of the class forbidden by this section, but it is by virtue of the evi
The present information charges that defendant set up and kept “a certain table and gambling device commonly called a crap table. ’ ’ There is no allegation defining a crap table or of what it consists, or how designed, or how and by what means the game of craps is played — in short, there is no allegation bringing it within the class of the enumerated devices, unless (first) we take judicial notice of what constitutes a crap table, and how the game of craps is played; or (second) unless the general allegation that it was “a gambling device adapted, devised and designed for the purpose of playing games of chance for money or property” is sufficiently descriptive thereof to supply the missing information.
As to the first proposition, we have abundant authority that we do not so judicially know (State v. Solon, 247 Mo. 672; State v. Etchman, 184 Mo. 193), and this soft impeachment we also on other and purely personal grounds deny.
As to the second proposition, it is sufficient to say that the allegatioin is more in the nature of a conclusion than a statement of fact. [State ex rel. v. Railroad, 240 Mo. l. c. 50.] It can,’with fitness, be applied to and be said to be equally descriptive of a pack of playing cards (State v. Gilmore, supra), a poker table without other paraphernalia (State v. Solon, supra), gun and target (State v. Bryant, supra), a horse race (State v. Lemon, supra); or, in fact, any of the “gaming tables and devices” included and prohibited by the misdemeanor section, to-wit: Section 4753, Revised Statutes 1909. In truth, substantially the same language is used and necessary when charging an offense under the misdemeanor section (State v. Howell, 83 Mo. App. 198); so the use of that phrase alone cannot possibly bring the alleged offense within the definí
In discussing a statute in substance like ours, and an indictment similar to the one at hand, it is said in Huff v. Commonwealth, 14 Gratt. 648: “Where the offense charged is for keeping and exhibiting a game not enumerated, there must be some averment showing it to be one of the unequal games belonging to the same class with the enumerated games. . . . The charge that the game is.unlawful does not cure the defect. The offense must be so charged as to appear to ■be unlawful;' otherwise, the allegation that an act was unlawful, would dispense with all averments showing it was unlawful. ’ ’
While the employment of the general words heretofore quoted are, under another rule of construction, essential to a valid charge, they cannot supply other material allegations of fact.
In the case of State v. Solon, supra, suppose the indictment had not alleged the element of which the court found there was no evidence, namely: the means by which poker is played, and which caused the reversal thereof, should defendant have been put upon trial? And yet without so alleging the indictment would have been just as good as the one in the instant case. Must we impute to a defendant a knowledge of what constitutes a poker table or a crap table and how they are operated when we judicially disclaim such knowledge? Is he not entitled to be advised of this by the indictment?
Our conclusion is that the information in this case is wholly insufficient, and in this we are sustained by
It is true that the present information has heretofore been held sufficient by this court, and this alone is responsible for our hesitancy to hold to the contrary, but we have frequently said that a question of law is not settled until it has been correctly decided.
In the first case (State v. Rosenblatt, 185 Mo. 114) there is a brief discussion of the indictment, but an analysis thereof discloses that the conclusion that the indictment is sufficient is predicated upon the statement that the statute under discussion is broad enough to and does, include the setting up and keeping of all devices which may be used for playing games of chance. "With this in mind, the court held that the statute individuated the offense, and that it was unnecessary to allege more than the words of the statute. Further consideration of this case indicates a glaring inconsistency. In discussing and determining thé character of games' and devices to which the statute is applicable-the court, as heretofore stated, recognized the rule of ejusdem generis, but when it came to determining the sufficiency of the charge, the court expressed the opposite view and held it applicable to all-devices. This error on the part of the court is agnin apparent from what it says at page 123, when attempting to distinguish our statute and the indictment then under discussion from the case of Huff v. Commonwealth, 14 Gratt. 648. The court in this connection said: “It was not necessary to allege that chuck-a-luck or craps or both were of a like kind of gambling device as A B C, faro bank, E O, roulette, keno or equality. The decision in Huff v. Commonwealth, 14 Gratt. 648, was predicated on a statute which, after designating certain gambling devices, proceeded to say, ‘or a table of like
In the case of Huff v. Commonwealth, supra, the court held that an indictment in the form of the instant one was insufficient for the reasons heretofore pointed out. It is clear that the statute in that case, by the use of the words “ora table of like kind, ’ ’ added nothing whatever thereto, and did not change the construction which the courts would have placed thereon even in their absence. In that case the Legislature merely expressed in the statute that which we attach in such cases by construction, and the distinction which this court attempted to make in the Rosenblatt case only emphasizes the incorrectness of the decision.
The cases of State v. Locket, State v. Holden and State v. Lee, supra, wei;e decided upon the strength of the Rosenblatt case, and the opinions therein contain nothing throwing light on this question. These opinions were written by Judges Gantt and Fox, and it is not amiss to note that in the case of State v. Etchman, 184 Mo. 193, Judge Fox wrote the opinion, and in it Judge Gantt concurred. In that case the indictment charged the setting up of a roulette wheel, where the statute denounces, among other devices, a roulette table. In that case the indictment was held insufficient, the court saying: “It may be said that those who are familiar with‘the game'know that ‘roulette wheeP has reference to ‘roulette table.’ That does not meet the difficulty.” (So might it be said by those familiar with a crap table that it is of the same class of devices as those named in the statute, but “that does not meet the difficulty.”) The opinion in this case was rendered at the same term as was the opinion in the Rosenblatt case, and is clearly inconsistent therewith.. Neither in the Rosenblatt, Locket, Holden or Lee cases is there any satisfactory authority cited sustaining the conclusion that the indictments therein are sufficient, but,- in our opinion, such authorities as are cited, when
Not only was there no, evidence upon which a jury could find that the tables kept by defendant were of , the kind commonly known as a crap table, but the court instructed, in effect, that this was immaterial.
IY. The record discloses several other assignments of error, but, since they relate to matters which the State can easily guard against on a retrial, we deem it unnecessary to discuss or decide them.
For the reasons heretofore assigned the judgment is reversed, and, in order to enable the State, if it sees fit, to further proceed on a valid and sufficient charge,
the cause is remanded.