State v. Locket

FOX, J. At the June term, 1904, of the circuit court of Pemiscot county, Missouri, the prosecuting attorney filed an information against the defendant, charging him with setting up and keeping, on June 1, — 418 — 1904, and prior thereto, a gambling device; commonly called a crap table. On arraignment, the defendant pleaded not guilty, and the trial occurred at the adjourned session of the June term, before a jury, duly impaneled. The information upon which this prosecution is based, omitting caption, is as follows: “L. L. Collins, prosecuting attorney duly elected, commissioned, sworn, qualified, installed and acting as such in and for said county of Pemiscot, in the State of Missouri, upon his said oath and upon his hereto appended oath informs the court and upon his said oath and upon his hereto appended oath does depose, present, aver and charge that said defendant, Dave Locket, on the 1st day of June, A. D. 1904, at the said county of Pemiscot and on divers other days and times prior to and between that day and the day of the filing of this information, at the county of Pemiscot and State of Missouri, did then and there willfully, unlawfully and feloniously set up and keep a certain table and gambling device, commonly called á crap table, the same being then and on said other days and times there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property and did then and on said other days and times there unlawfully and feloniously induce, entice and permit certain persons whose names are to this informant unknown to bet and play at and upon a game played at and by means of such gambling device on the side and against the keeper thereof, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Missouri. L. L. Collins, “Prosecuting Attorney, Pemiscot county, Missouri. “L. L. Collins, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true according to his best knowledge, information and belief. . L. L. Collins. — 419 — ‘ ‘ Subscribed and sworn to before me tbis 22d day of June, A. D. 1904. “As witness my official hand, name and signature and tbe style and seal of my office. “(Seal.) -J. W. Green, “Clerk Circuit Court. “By Harvey E. Averill, D. C.” Tbe facts as developed at tbe trial of tbis cause are substantially as follows: Andy Baker testified that defendant, in the spring of 1904, at State Line, Pemiscot county, Missouri, built a. bouse on purpose for a crap table and poker room, which was in tbe rear end thereof. “He (defendant) got lumber, be says, to make a dancing floor and put him up a joint.” Bid not say what kind of a joint. I was in tbe place fifty times. It was just a bouse, two rooms, a partition, and a poker table in one end and a big crap table with a rim built about it and with cloth. Defendant run a crap table some time in April, 1904, at State Line, in Pemiscot county, Missouri. “I saw him there and ‘cutting it.’ ” On cross-examination witness said: I did not say defendant run tbe crap table at State Line. I said a crap table was built there and Dave Locket was running tbe take-off; Dave Locket was tbe general boss; what be said generally went there; when tbe place was torn down defendant took tbe tent back to tbe saloon. When I saw defendant be was shooting craps; be took tbe nickel and put it in the take-off box; big game about tbe table; tbis was in April, 1904. Have seen defendant there dozens of times shooting craps. Defendant told me be bought tbe lumber to build tbe crap table; I do not know positively who that table belongs to. Both tables were in Pemiscot county. It was fixed for gambling purposes ; have seen defendant with the money box carrying it about. When defendant was around, there was no one else around assuming tbe place of proprietor or boss. When be was away, negroes ran tbe tables. — 420 — Sam Cooney testified: Saw defendant carrying a little money box about; a take-off box; be would take it over to this gambling bouse mornings and evenings; bave beard defendant speak about “bis g*ame.” Lon F. Johnson testified: Saw defendant running crap game at State Line in January, 1904; defendant was calling tbe game, saying what men would shoot; defendant put tbe take-off in the box; I beard defendant say when be bought tbe tent that be was to run a crap game; bave seen him invite men to play. J. A. Franklin testified: Am sheriff and arrested defendant; walked into State Line saloon and defendant came in with a couple of little boxes with a slot in tbe top; defendant told me “they all played” there, when I told him tbe charge against him. Thomas J. Green, jailor, testified: Defendant told me be bad been running a gambling device at State Line; defendant said there were two other men ahead of him and be never opened tbe boxes at all. • Dave Locket, defendant, testified: There was a gambling bouse at State Line; never run a gaming table there at tbe Line; I was running it once or twice down at tbe switch. Tbe box was there on the table and tbe game started; nobody else being there, I put tbe nickles in the box; I could not get in tbe box; Ike Sharp tended to tbe box; that table belonged to all of them at State Line; all that came in there and gambled on it. Tbe old tent, where tbe table was, was mine; but I did not put tbe crap table there. I ran tbe crap game at State Line, in this county, “along last spring, January, this year. ’ ’ I did not care much when Ike and Ed Topsy put tbe table in my tent. At tbe close of tbe evidence, tbe court instructed tbe jury, and tbe cause being submitted they returned a verdict of guilty and assessed defendant’s punishment at imprisonment in tbe penitentiary for tbe period of two years. Judgment was rendered in accordance with tbe verdict and from this judgment defendant — 421 — in due time and form prosecuted Ms appeal to tMs court and the record is now before us for consideration. OPINION. The errors complained of by appellant in this cause are thus briefly stated in the brief before us: “The table and gambling device, to-wit, ‘a pair of dice, ’ is not a gambling device under section 2194, Revised Statutes 1899. The table should be designed, adapted and devised for the purpose of playing a game of chance, such as is named in section 2194, Revised Statutes 1899. “Crap tables are not named in said section 2194, Revised Statutes 1899, because the game of ‘craps’ is, and can be, played without the intervention of a table; craps can be played without the means of a table; the table is only a convenience. Craps are played with the dice and a table is unnecessary. “Section 2194, Revised Statutes 1899, has reference to games that cannot be played without the assistance of a table; that is to say, the table constitutes and is a necessary appliance before the game can be played; the game cannot be played without the assistance of the table, and the table constitutes a necessary part of the device. “An ordinary table, such as was described by the evidence in this case, upon which a game of craps • can be played, by means of a pair of dice, is not. within the prohibition of section 2194, Revised Statutes 1899.” "While learned counsel for appellant states the points upon which he relies for the reversal of this judgment in different forms, it is apparent that the disputed legal proposition is embraced within the narrow bounds of the question, whether or not a “crap table” is such a gambling device as is contemplated by section 2194, Revised Statutes 1899. This section provides: “Every person who shall set up or keep any — 422 — table or gambling device commonly called A B 0, faro bank, E 0, ronlette, equality, keno 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, be adjudged guilty of a felony,” etc. This prosecution is predicated upon the provisions of that statute, and the solution of the proposition so ably and earnestly presented by counsel for appellant, must be sought in the proper application of the recognized rules of statutory construction. . The construction of this statute, the nature and character of gambling devices included within its provisions, were sharply presented in State v. Rosenblatt, 185 Mo. 114. This conrt, responding to the contention of counsel in that case, in discussing the provisions of section 2.194, supra, said, Gantt, J., speaking for the court: “The statute is broad enough to and does include the setting up or keeping ‘any kind of gambling table or gambling device adapted, devised or designed for the purpose of playing any game of chance for money or property,’ and this indictment specifically charges that the defendant did set up and keep one crap table, commonly so called, upon which dice are used, and one chuck-a-luck table, commonly so called, upon which are used dice, ‘which said gaming table and gambling device were adapted, devised and designed for the purpose of playing games of chance for money and property,’ etc. ‘Chuck-a-luck’ and ‘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 — 423 — 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 chuck-a-luck table and crap table are of that class. It was so ruled of 'keno’ under a statute of Arkansas substantially in the words of section 2194. [Gould’s Dig. of Arkansas, sec. 1, art, 3, chap. 51, p 369; Portis v. State, 27 Ark. 360; Trimble v. State, 27 Ark. 355.] Also of ‘Pico.’ [Euper v. State, 35 Ark. 629.] In Bell v. State, 32 Tex. Crim. Rep. 187, a crap table was held to be a gambling device within the statute of that State against keeping or exhibiting, for the purpose of gambling, a gaming table or bank. A like rul-' ing was made as to a ‘nickel-in-the-slot’ machine by the Supreme Court of Georgia in Kolshorn v. State, 97 Ga. 343. [See, also, Mims v. State, 88 Ga. 458.]” We see no reason for departing from the conclusions reached in that case, and it must be treated as decisive of this proposition. It is next insisted that the information is vague and uncertain, and fails to charge any criminal offense under the laws of this State. Upon this contention it will suffice to say that a careful examination of the information in this cause discloses that it is in substantially the same form as the indictment approved in the Rosenblatt ease, and following that case this contention must be ruled adversely to appellant. It can serve no useful purpose to burden this opinion with a reproduction of the instructions given in this cause. We have given them careful consideration, and find that they require the jury to find every essential element of the offense charged and fairly and fully cover every feature of the case to which the testimony was applicable. We have read in detail the testimony disclosed by the record. It fully supports the finding of the jury and we are unwilling to usurp their province and retry — 424 — the case upon the disclosure of the evidence from' the record. Finding no reversible error in the record before us, the'' judgment should be affirmed, and it is so ordered. Gantt, Jconcurs; Burgess, P. J., absent.