State v. Torphy

Gill, J. In an indictment returned against the defendant in the circuit court, it was charged, that “on or about the-day of January, 1895, at the county of Jasper and state of Missouri, one Mike Torphy did then and there unlawfully bet a sum of money, to wit, five cents, at and upon a game of cards, commonly called poker, then and there played by means of a certain gambling device, to wit, a pack of cards, against,” etc. There were two other counts, all of the same tenor except as to the amount of the bets. The court sustained defendant’s motion to quash the indictment, on the ground that no offense against the law was charged. The state appealed. [436] I fail to discover any substantial reason for the court’s action in quashing the indictment. Thevstatute for the violation of which the defendant was indicted, 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 or upon any other gambling device, or who shall bet upon any game played at or by means of any such gaming table, or other gambling device * * *' shall, on conviction, be adjudged guilty of a misdemeanor,” etc. Sec. 3809, R. S. 1889. By the terms of this statute, it is made an offense to bet money on any game played at or by means of any gambling device. The defendant was substantially charged with the commission of this identical act — rand in terms even more specific than the language of the law. The nature of the game played and the kind "of gambling device used were clearly set out. It was not required to charge that the gambling device was “adopted, devised, and designed for the purpose of playing any game of chance for money or property.” This qualification is proper when the keeper of a gaming table, or gambling device shall be prosecuted under section 3808, but is not required in a case coming under section 3809. State v. Bates, 10 Mo. 166; State v; Flack, 24 Mo. 378. These cases were decided under a statute the same as we have it now. Section 16, p. 402, R. S. 1845. A pack of playing cards may be a “gambling device” under section 3809. State v. Mohr, 55 Mo. App. 329; State v. Gilmore, 98 Mo. 206. There is nothing in State v. Bryant, 90 Mo. 537, that opposes the rule in the foregoing cases or disturbs our present holding. The trial court erred in quashing the indictment' and the judgment will therefore be reversed and the cause remanded. All concur,