text:
    THE STATE v. ANDY SKILLMAN, Appellant.
    Division Two,
    May 26, 1910.
    1. CONVICTION OF LESSER OFFENSE. The State can select for prosecution a less or different offense of which defendant is guilty, although he is guilty of a greater or different offense.
    2. -: Carnal Knowledge: Evidence Showing Rape: Force: No Instruction. Although prosecutrix’s testimony shows that defendant used force and she failed to make an outcry, it is not the duty of the court to instruct on her failure to make an outcry. The State may elect to prosecute under the carnal knowledge statute, and not for rape. Besides, in this case, the court should not have given an instruction for rape, because the evidence shows the offense of carnal knowledge as defined by the statute, and the jury might well have rejected the testimony as to force.
    3. CARNAL KNOWLEDGE: Sufficient Evidence. Where the testimony of the prosecutrix was corroborated by other witnesses, and there were no physical facts that contradict her, and defendant had ample opportunity to have carnal knowledge with her, and the evidence fails to show that other persons did, and she gave birth to a child, it was for the jury, who saw her manner at the trial, to determine whether or not she was worthy of belief.
    Appeal from Bates. Circuit Court. — Hon. Chas. A. Denton, Judge.
    Affirmed.

      Miles S. Dorn, John 8. Francisco and D. C. Clark for appellant.
    (1) The testimony of the prosecuting witness, upon which the State must depend solely, makes out a case of rape. It was proper, therefore, to submit to the jury the usual instruction on her failure to make an outcry or complaint of her treatment thereafter. The court erred in refusing instructions 91 and 10 offered hy the defendant. , (2) Under the peculiar dreumstances in this ease, the court should have instructed on the higher crime of rape. 118 Mo. 79'; 86 Mo. 309. (3) The testimony of the prosecutrix, upon which alone this verdict must stand, if at all, is so improbable and contradictory and at variance with all the possibilities, that it is clearly the result of passion and prejudice.

      Elliott W. Major, Attorney-General, and Chas. G. Bevelle, Assistant Attorney-General, for the State.
    (1) Appellant’s first contention is clearly untenable, since he was not charged with the crime of rape, but that of defiling his ward. Force or violence constitutes no element of the offense for which he was on trial, and as a matter of law it was wholly immaterial whether the prosecutrix made or failed to make any complaint. State v. Palmberg, 199 Mo. 254. (2) The court under this indictment, should not have authorized a verdict of guilty or not guilty on the charge of rape, since the indictment does not include within its allegations all the elements of that crime. There is no allegagation that the act complained of was accomplished by force, or that the female was under the age of fourteen years, but, on the contrary, the allegation is that she was fifteen years of age. The proposition that the State can select for prosecution the lesser crime of which a person is guilty, is no longer debatable in this State. This court has expressly held that the statutes against carnal knowledge make no distinction between sexual intercourse with or without consent or force, and that a defendant cannot escape the effect of such statutes because the evidence shows he used sufficient force to constitute rape. In such cases there is no such merger of the offenses as to discharge him for the offense for which he was indicted, and he cannot complain that he was not proceeded against for a greater crime. State v. Harney, 168 Mo. 167; State v. Knock, 142 Mo. 515; R. S. 1899, sec. 2535; State v. Wagner, 78 Mo. 337; State v. Keeland, 90 Mo. 338; State v. Jones, 106 Mo. 302; State v. West, 202 Mo. 128; State v. Bobbitt, 215 Mo. 10; State v. Sebastian, 215 Mo. 58. (3) We fail to see how this court can or should disturb the verdict on the ground of insufficiency of evidence. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetriek, 199 Mo. 100; State v. DeWitt, 152 Mo. 76.
   GANTT, P. J.

This cause was here on a former appeal and was reversed and remanded for want of sufficient information. [State v. Skillman, 209 Mo. 408.]

Thereafter on the 19th of January, 1909', the prosecuting attorney filed a new information in which he charged that the defendant on the — --day of July, 1906, at Bates county, was then and there a person to whose protection one Myrtle McCulloch, a female, then and there under the age of eighteen years, to-wit, of the age of fifteen years, had been and was then and there confided, and her, the said Myrtle, unlawfully and feloniously did defile by then and there having carnal knowledge of her body, while she remained in his care and protection, custody and employment, she the said Myrtle then and there being confided to the care and protection, custody and employment of the said Andy Skillman, against the peace and dignity of the State. Upon this new information, defendant was duly arraigned, tried and again found guilty and his punishment assessed at two years in the State penitentiary. Motion for a new trial and in arrest were duly filed, heard and overruled and the defendant sentenced in accordance1 with the verdict Prom that judgment he prosecutes this appeal.

The testimony on the part of the State tended to prove that in July, 1905, Myrtle McCulloch, a daughter of J. H. McCulloch, was about fifteen years old; that ■under an agreement between ber father and the defendant she went to live in defendant’s family as a member of his family, and for her services defendant was to furnish her with proper food and clothing and treat her as a member of his family and to see that she did not run around the streets of Foster, the town in which he lived, or to be out at night unless accompanied by members of his family. Defendant and his wife and Myrtle constituted the family of defendant. It appears that shortly after Myrtle went to live with defendant he began to take liberties with her in the absence of his wife. This conduct continued until July, 1906, when on one occasion his wife had gone down town — Myrtle was in the dining room alone, writing a letter, when defendant came in and began caressing her and had sexual connection with her on a lounge in the dining room. According to her testimony he had intercourse with her frequently, both before and after that date. She testified she did not consent; that he used more or less force, but she made no outcry, and did not complain to members of the defendant’s family or to her parents when she went home, as she occasionally did and remained for a day or two. In the latter part of July, 1906, she and defendant discovered she was in a family way and she went home, and in March, 1907, she gave birth to a child. She testified that she never had intercourse with any other man and that defendant was the father of her child.

Different witnesses testified to statements and admissions of defendant, tending to show his guilt. The father testified that in July, 1906, defendant had told him Myrtle had received no company or attentions from boys or men and had not been out at night during her stay at his home. On two occasions, soon after she left defendant’s home, defendant inquired of her father if Myrtle had told anything, to which the father replied in the negative as he had not then learned of her condition. Another witness testified that defendant told him he had heard Myrtle was in trouble and was going to charge her condition to him, and if he thought she could he would leave home, but owing to his coal business he could not get away. Afterwards he said to this witness that if the latter was subpoenaed to testify, he could simply state that defendant had told him nothing about the case, and that he knew nothing about the facts. He also advised another witness to approach the girl for sexual favors.

Defendant testified in his own behalf. He denied he ever had sexual intercourse with the girl, and denied the statement and admissions attributed to him by the other witnesses. He produced evidence of good character, and testimony tending to show the reputation of Myrtle for truth and veracity was bad. He also offered evidence that Myrtle had said defendant only had intercourse with her once. The members of his family denied the familiarity of defendant with prosecutrix to which she testified.

In rebuttal the State introduced evidence of seven or eight witnesses to the effect that the reputation of prosecutrix for truth and veracity was good.

There is no error whatever in the record proper. The information is sufficient and charges all the essentials to bring the offense within the statute. The arraignment, impaneling of the jury and the verdict and sentence are all in due and regular form.

The defendant seeks a reversal upon two grounds, first, that the testimony of the prosecutrix makes out a case of rape and the court should have instructed the jury on the failure of the prosecutrix to make an outcry or complain of her treatment when opportunity offered; second, that there is no substantial evidence to support the verdict and it was the result of passion or prejudice.

I. The proposition that the State can select for prosecution a less or different offense of which a person is guilty, although he is guilty of a greater or different offense, is settled law in this State. This has been fully settled in prosecutions under the carnal-knowledge section and statutory rape of a female under fourteen years of age, in which it has been ruled that those offenses may be committed with or without force. [State v. Knock, 142 Mo. 515; State v Hamey, 168 Mo. 167; State v. Palmberg, 199 Mo. l. c. 254.]

Moreover, we do not think the court should have given the instruction in regard to rape, because, as was said in State v. Strattman, 100 Mo. l. c. 550, “this is a case where ‘actions speak louder than words.’ ” The jury might well have rejected the evidence as to force. See also See. 2535, R. S. 1899; State v. Bobbitt, 215 Mo. 10; State v. Wagner, 78 Mo. 644; State v. Sebastian, 215 Mo. 58.

II. To the contention that the testimony was insufficient to support the verdict, we are unable to agree. Notwithstanding the assault upon the testimony of the prosecutrix, it can he said that two juries of the county in which the offense was charged to have been committed heard her evidence, saw her demeanor on the witness stand and believed her.

So much depends upon the appearance and manner of a witness that it is with extreme reluctance that an appellate court should assume the right of disregarding a witness’s story. In this case there are no such contradictions or physical facts that would justify us in so doing. On this last trial, the girl’s testimony was corroborated by other evidence. There was no testimony showing she had been intimate with any other man; on the contrary, he had ample opportunities, if so disposed and she had no other masculine associates. While her testimony indicates she has had few advantages, intellectually or morally, it was for the jury who saw and heard her to determine whether she was worthy of belief and by their verdict they have said she was, and we see no reason for disturbing their verdict, and accordingly the judgment is affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. WILEY GRAVETT, Appellant.
    Division Two,
    May 26, 1910.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions was filed, and there was no error in the record proper, the judgment of conviction will he affirmed.
    Appeal from Dunklin Circuit Court. — Son. J. L. Fort, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is sufficient, and concisely presents the offense under section 1848, R. S. 1899. The assault is alleged to have been made with a pistol loaded with gunpowder and balls, and also a large knife. It was competent to charge the assault to have been committed by the use of more than one weapon. State v. Hottman, 196 Mo. 122; State v. Myers, 198 Mo. 258; State v. McDonald, 67 Mo. 13; State v. Thomas, 99 Mo. 235; Johnson v. State, 7 Mo. 183; State v. McDaniel, 94 Mo. 301. (2) November 15; 1907, at the regular November term of the Dunklin circuit court, defendant was granted ninety days, in vacation, to perfect and file his bill of exceptions, but the record proper does not show that said bill of exceptions was ever filed. The arraignment, plea of not guilty, the impaneling of the jury and their oath to try the cause, and judgment of. sentence are all regular, in proper form, and the cause should be affirmed.
   GANTT, P. J.

Prom a conviction in the circuit court of Dunklin county of an assault with intent to kill James P. Morrison and a sentence to two years’ imprisonment in the penitentiary, the defendant appealed to this court. He was given ninety days after the November term, 1907, in which to file a bill of exceptions, but did not avail himself of this privilege and his appeal is here on the record proper alone.

The information is in all respects sufficient. He was duly arraigned and entered his plea of not guilty. The impaneling of the jury was in regular form and the verdict responds to the charge in the information. No error appearing, the judgment and sentence of the circuit court is affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. LUTHER ANDERSON, Appellant.
    Division Two,
    May 26, 1910.
    NO BILL OF EXCEPTIONS. Where it appears from the record proper that defendant, after being found guilty of murder in the first degree and his punishment assessed at imprisonment for his natural life, and upon his taking an appeal, he was granted leave to file a hill of exceptions on or before a date named, and that, it appearing to the trial court he was without means and unable to pay for the transcript, it was ordered that a complete transcript he prepared at the cost of the State, yet no bill of exceptions was filed, the judgment must he affirmed, the information being good and sufficient, and all the proceedings leading up to and including the trial, verdict and sentence being regular in form.
    Appeal from Audrain Circuit Court. — Mon. Jas. B. Barnett, Judge.
    Abeibmed.

      Elliott W. Major, Attorney-General, and Chas. G. Bevelle, Assistant Attorney-General, for the State.
    (1) The information charges with certainty the essential elements of the crime, and follows well-considered precedents in criminal pleading. State v. Kindred, 48 Mo. 279; State v. Rector, 126 Mo. 328; State ,v. Barrington, 198 Mo. 36. (2) The record discloses that defendant was duly arraigned, a jury properly chosen and sworn, the cause tried according to orderly procedure, a verdict of guilty returned, and the defendant sentenced in pursuance thereof. The record- proper being in regular form, the judgment must be affirmed. State v. Miller, 209 Mo. 389; State v. Jackson, 209 Mo. 397; State v. Brown, 206 Mo. 718'.
   FOX, J.

Upon an information filed by the prosecuting attorney of Audrain county in the circuit court of said county, charging the defendant with murder in the first degree, the defendant was, on the 14th day of August, 1909, upon trial had, found guilty of the offense charged, and his punishment assessed by the jury at imprisonment in the penitentiary for the term of his natural life.

After unavailing motions for new trial and in arrest of judgment, sentence was pronounced in accordance with the verdict, and the judgment entered of record. Thereupon defendant appealed.

It appears from the record that the defendant, upon taking an appeal, was granted leave by the court to file his bill of exceptions on or before October 1, 1909, and that, it appearing to the court that he was without means and unable to pay for the transcript, it was ordered that a complete transcript of the proceedings be prepared at the cost of the State. Notwithstanding this, no' bill of exceptions was filed, and the case is here on the record proper.

The information is good and sufficient, and all the proceedings leading up to and including the trial, verdict and sentence, are in regular form. The judgment, therefore, is affirmed.

All concur.


text:
    THE STATE v. MARTIN RUMFELT, Appellant.
    Division Two,
    May 26, 1910.
    1. MURDER: Sufficient Evidence: Circumstantial: Conflict. It is for the jury to settle any conflict in the testimony; and though the evidence tending to show defendant’s guilt is circumstantial and though the verdict convicts him of murder in the first degree, yet if it is substantial the Supreme Court will not disturb the verdict on the ground that it is insufficient.
    2. CROSS-EXAMINATION: Defendant as Witness. A cross-examination of defendant as to matters referred to or necessarily embraced within the questions propounded and answers given in his examination in chief, is not improper.
    3. TESTIMONY: Irrelevant Matters: Exclusion. Questions and answers concerning an irrelevant matter which develop no evidence either for or against defendant, especially where the trial court specifically directs the jury they must not consider such matters, are not error.

      41. MURDER: Of Brother: Double Presumption of Innocence. An instruction telling the jury that defendant is entitled to an additional presumption of innocence due to the fact that deceased was his brother, is unauthorized; but having been asked by defendant and given, it was error in his behalf and he cannot complain.
    5. -: Of First Degree: Instructions for Lower Grade. Where upon the facts as developed at the trial defendant is guilty of murder in the first degree if guilty at all, the instructions are properly confined to that degree of the offense, and the court is not justified in giving instructions upon any lower degree, and defendant cannot be heard to complain that instructions submitting lower degrees of the offense were not given.
    6. REMARKS OF COUNSEL: Not Preserved. Complaints of improper remarks of counsel for the State made during the argument of the case, preserved only in the motion for a new trial, cannot be reviewed on appeal.

      7. IMPEACHING JUROR: Verdict Not Based on Evidence. Affidavits in support of the motion for a new trial tending to show that one of the jurors made statements in the presence of certain persons that “it was not the evidence given in court in the trial of the case that the jury convicted him on, but on what they heard outside of court, and that there was some evidence they would not allow to be given in court,” amount to nothing more or less than an offer to use the statements of a juror for the purpose of impeaching the verdict. A juror cannot make affidavits or statements impeaching the verdict of a jury of which he was one.
    8. MURDER: Reviewing Case: No Counsel. Though defendant is not represented by counsel in the Supreme Court on an appeal from a judgment convicting him of murder in the first degree, the court will carefully examine the record with the view of /discovering any reversible error committed at the trial to which exception was taken, and also the sufficiency of the information.
    Appeal from Ripley Circuit Court. — Hon. J. G. Sheppard, Judge.
    Aeeermed.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The information was not assailed before verdict. The motion in arrest questions its validity. The information charges every element of murder in the first' degree. State v. Evans, 158 Mo. 592; State v. Gray, 172 Mo. 434. (2) The evidence tended to show that appellant murdered his brother while he slept. Whatever conflict of evidence there was, was settled by the verdict of the jury. State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 409; State v. Smith, 190 Mo. 723. (3) Numerous exceptions were taken to rulings which were too clearly correct to require discussion. (a) Many of the objections were “in the stereotyped form so often condemned” as insufficient. State v. Harris, 199 Mo. 723; State v. Pyles, 209 Mo. 632; State v. West, 95 Mo. 149. (b) In excepting to •the exclusion of evidence appellant’s counsel in several cases failed to advise the court what the desired evidence was. State v. Foister, 202 Mo. 48; State v. Page, 212 Mo. 237. (c) In other cases the answer was in when the objection was made. State v. Sykes, 191 Mo. 79; State v. Harris, 199 Mo. 723. (d) The state of feeling between appellant and deceased was competent. Underhill on Crim. Ev., secs. 323, 330. (e) The cross-examination of appellant as to the shells was proper. They had been referred to in the direct examination. The cross-examination as to the time of appellant’s return to the home was also proper. So was the examination of the appellant as to the lacings of his shoes. State v. Myers, 221 Mo. 612. (f) The questions put to Fugate relative to certain letters, elicited no evidence for or against appellant. In addition, the court specifically advised the jury that they must not consider the questions and answers concerning the letters. The questions were in nowise harmful in ‘the first place. (4) Instruction 1 as to' (a) motive, (b) 2 as to the presumption of innocence, (c) 3 and 11 as to conviction on circumstantial evidence, (d) 4 and 10 as to reasonable doubt (when read together), (e) 5 as to previous good character, (f) 6 as to statements of appellant, (g) 7 as to appellant’s testimony, (h) 8 as to the credibility of the witnesses, (i) 9 defining terms, (j) 12, as to the substance of the offense, are all in proper and approved form. (a). State v. David, 131 Mo. 396; State v. Foley, 144 Mo. 620. (b). State v. Grant, 152 Mo. 64. (c). State v. Moxley, 102 Mo. 388. (d). State v. Nueslein, 25 Mo. 123; State v. Paxton, 126 Mo. 508; State v. Whalen, 98 Mo. 226'. (e). State v. Brooks, 92 Mo. 556. (f). State v. Tobie, 141 Mo. 561. (g). State v. McQuire, 69 Mo. 202; State v. Maupin, 196 Mo. 175. (h). State v. Martin, 124 Mo. 521; State y. Mounce, 106 Mo. 229. (i). State v. Har■rod, 102 Mo. 597; State v. Harper, 149 Mo. 520. (j). Sítate v. Thomas, 78 Mo. 342. The instruction as to an additional presumption of innocence, arising from the relationship between appellant and deceased, was error in appellant’s favor. State v. Grant, 152 Mo. 68; State v. Soper, 148 Mo. 217. The complaint in the motion for new trial that the court erred ‘ ‘ in not giving instructions . . . covering the whole law of the case,” is unfounded, in the first place, and, besides, no request for further instructions was made. This ground cannot be considered. State v. Palmer, 161 Mo. 171; State v. Bond, 191 Mo. 563; State v. West, 202 Mo. 137; State v. McCarver, 194 Mo. 742. (5) Appellant complains in his motion for new trial of certain alleged remarks of counsel for the State, asserted in the motion to have been made during the argument of the case. There is nothing in the record, outside the motion, supporting this assignment. It cannot be reviewed. State v. Meals, 184 Mo. 260. The affidavits were merely an effort to use the statement of a juror for the purpose of impeaching his verdict. The trial court quite properly gave no heed to it. State v. Cooper, 85 Mo. 261; State v. Rush, 95 Mo. 205; State v. Sprague, 149 Mo. 424.
   FOX, J.

This cause is pending upon appeal on the part of the defendant from a judgment of the circuit court of Ripley county, Missouri, convicting him of murder of the first degree.

On the 16th day of February, 19091, the prosecuting attorney of Ripley county filed in the circuit court an information charging appellant with murder in the first degree. At the March term of court appellant waived formal arraignment and entered his plea of not guilty. A jury was forthwith impaneled and sworn and the trial proceeded.

The evidence on the .part of the State tended to show that during the year 1908 defendant and his brother, the deceased, lived together, “batched,” as the witnesses put it, on a farm in Ripley county, Missouri. Defendant had conveyed his four-fifths interest in the land to deceased; the remaining one-fifth interest belonged already to deceased. The brothers had not been in complete accord concerning their business affairs, and their treatment of each other, according to the witness Moore, their brother-in-law, had not been entirely brotherly for sometime.

On November 12, 1908, some twelve hours prior to the death of Andrew Rumfelt, he and defendant were observed “not to appear right, like they had at other times,” and it was noticed that they did not speak to each other.

At about 11 p. m., November 12,1908, W. A. Moore was aroused by defendant repeatedly calling his name. Moore arose and at his kitchen door met defendant, gun in hand. Defendant told his brother-in-law that he was awakened by the report of a gun; that he supposed his brother was shooting at a stray dog, probably; that he felt to see if his brother was in bed and at that moment a second shot was fired into the bed near his, defendant’s head; that he threw back the covers, sprang out of bed, seized his gun and fired, but “did not know which way he shot;” that he got more shells from the mantel, spilling others upon the floor, reloaded his gun and fired at the form of a man going out the door, but “didn’t know whether he killed anyone or not.” This recital defendant repeated to others later that night.

Defendant was nervous and excited and urged his brother-in-law to go back with him at once to see whether his brother had been killed and whether he had killed anyone with the shots he said he had fired. Moore took defendant’s gun from him and unloaded it, taking out a “New Club” shell. Moore then induced defendant to come into the house and then it appeared that he was fully dressed save that he was wearing no hat and that his shoes, though laced to the top, were untied.

By means of the telephone Moore summoned some of his neighbors. To these defendant told his story substantially as he had done to his brother-in-law. Defendant, his brother-in-law and the neighbors who had gathered in, went to the Rumfelt house and there found Andrew Rumfelt dead. The outer door was fastened with a chain. A charge of shot had passed entirely through the head of deceased, haying entered about two inches above the left ear and having passed out of the head on the right side, the wound of exit being about six inches long. The left side of deceased’s face was powder burned; some of the shot had lodged in the pillow beneath the dead man’s head. Another charge had been fired into the end of the pillow slip on the side of the bed not occupied by deceased, passing through the bed and into the wall beneath. Deceased, when found, was lying on his back with his arms folded, the bed covers being “snugly drawn up over him” and “tucked under him on both sides.” There were no indications that any one save deceased had occupied the bed that night. The wound in the head was the only evidence of violence on the body of the deceased. An empty “Robin Hood” shotgun shell was found near the head of the bed and an empty “New Club” shell near the door. These shells had the appearance of having been recently fired and were of the same kind and caliber as other loaded shells found in the belt belonging with the defendant’s gun and also in a box on the mantel. The “Robin Hood” shell found was like one which Andrew Rumfelt was seen to place in the gun the day before. There was no indication, in the room that more than three shots had been fired, though, according to defendant’s first story, his unknown assailant had fired two, and he, defendant had fired two. Defendant, while in jail, had an empty shell burned. Defendant, sometime after the killing, stated that he fired only one shot and fired that at a form in the doorway. It appeared that the charge which struck the wall near the door could not have struck where it did had the door been open. The gun identified by defendant as the one used by him on the night of the killing was in evidence, and it was shown that the empty shells found on the floor had been fired from this gun; the impression made by the plunger on the shells in question being somewhat to one side of the usual position, and the plunger on the gun usrd' by defendant being loose in such a way as to strike shells fired by it as those in evidence were struck.

There was also evidence tending to show that in order for the fatal charge to strike' deceased as it did it must have passed within an inch of the pillow on which defendant asserted he was lying when his brother was killed. There was other evidence for the State, how-' ever, tending to disprove this. The bedding and pillows on the bed on which deceased lay when killed were burned by one of appellant’s counsel, and the witness, Moore.

On cross-examination some of the State’s witnesses stated that defendant’s reputation for peace and quiet was good.

For defendant, J. L. Robinson testified that he and Moore publicly burned the bedding, he having been employed by defendant to clean up the premises for a tenant to whom defendant had leased them. He offered to let Moore have any of the household goods he might want. The bedding was old, dirty and bloody. The sole motive in burning it was ‘‘to get rid of it. ’ ’ There was no intent to destroy evidence. Witness said he “expected,” if he “had been prosecuting attorney, he would have taken care of those pillows,” adding, “I didn’t need them in my business.” Witness admitted he knew he was destroying “competent, legal evidence,” and added that he “was representing the other side,” being one of defendant’s counsel.

In his own behalf defendant testified that he did not shoot his brother and did not know who did. He admitted that most of the statements attributed to him by the State’s witnesses were correct, except that he declared he had not said he fired two shots. Defendant then testified in substauce to the same facts he had stated on his arrival at Moore’s, with the exception noted above, and with the further exception that he added that when he fired his gun the door had been drawn suddenly shut. He explained his failure to investigate his brother’s condition before going to Moore’s by saying that to have done so would have exposed him to a shot through the window. He said that he left the house by the back door, went to the corner of the house and saw that the front gate was open, but saw no one. He then went to Moore’s. He said he made no outery before reaching Moore’s, fearing that his unknown assailant would pursue and shoot him. Defendant declared he and the deceased had never had any difficulty with each other.

At the close of the evidence the court instructed the jury upon murder of the first degree, reasonable doubt and upon all other subjects to which the testimony was applicable. The cause was then submitted to the jury and they returned their verdict finding the defendant guilty of murder in the first degree and fixed his punishment at imprisonment in the penitentiary for life.

Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were rendered in conformity to the verdict returned by the jury. From tbis •judgment defendant prosecuted this appeal and the record is now before us for consideration.

OPINION.

Defendant is not represented in this court; however, in compliance with the provisions of the statute, we have carefully analyzed the disclosures of the record, with the view of giving expression to our opinion as to whether or not there was any reversible error committed by the trial court in the disposition of this cause.

L

Prior to the trial and return of the verdict learned counsel for appellant did not challenge the sufficiency of the information in this cause; however, the motion in arrest of judgment does question the validity of the information. Directing our attention to this point it is sufficient to say that we have carefully analyzed the charge as embraced in the information, and in our opinion it charges every essential element of the offense of murder of the first degree, and the offense is charged in a form and manner that has repeatedly met the approval of this court. [State v. Evans, 158 Mo. 589; State v. Gray, 172 Mo. 430.]

II.

The sufficiency of the evidence as disclosed by the record to authorize the conviction of the defendant is challenged. Upon this proposition it is only necessary to say that we have indicated the nature and character of the testimony upon which this cause was submitted to the jury. While it may be said that the testimony tending to establish the guilt of the defendant is purely circumstantial, yet when it is fully considered, in our opinion, it fully supports the verdict as returned by the jury.

This cause is no exception to the general rule that in cases of this character there is usually a conflict in the evidence, and it is specially the province of the jury to determine that conflict. The general rule, which is thoroughly established in our jurisprudence, is that where there is substantial testimony showing the guilt of the defendant this court will not undertake to disturb the verdict. No one can read the details of the testimony as disclosed by the record in this cause and escape the conclusion that this defendant was the slayer of his brother.

Finding that there is substantial evidence which fully supports the conclusion as reached by the jury, we shall not undertake to retry this cause upon the disclosures of the record and undertake to determine whether the jury properly determined the cause upon the evidence. The trial court and the jury had opportunities óf determining the credibility of the witnesses and the weight to be attached to their testimony that are not afforded the appellate court, therefore we decline to interfere with the verdict on that ground. [State v. Miller, 188 Mo. l. c. 379; State v. McGee, 188 Mo. l. c. 409; State v. Smith, 190 Mo. l. c. 723].

III.

We have carefully considered the disclosures of the record as to the action of the court in the admission and rejection of testimony, and it is sufficient to say that we find there was no error along that line. The trial court seemed to have been very careful in the admission and rejection of evidence, and the assignment of error upon the action of the court in the admission and rejection of evidence must be ruled adversely to the appellant.

IV.

The motion for a new trial alleges as one of the grounds for such motion an improper cross-examination of the defendant while a witness upon the stand. We have examined the record upon that proposition and find that the cross-examination was entirely appropriate ; it was as to matters referred to or at least necessarily embraced within the questions propounded and answers given in the examination in chief. The comparatively recent case of State v. Myers, 221 Mo. l. c. 612, 613, very clearly announces the true rule as applicable to this proposition, and fully supports the cross-examination of the defendant upon the subjects in the case at bar.

V.

It is complained in the motion for new trial that the court committed error in permitting counsel to ask questions of witness Fugate relative to certain letters. "We have examined the disclosures of the record upon that proposition and have reached the conclusion that the questions and answers so far as the letters were concerned did not develop, any evidence either for or against appellant. But aside from this, the court specifically directed the jury that they must not consider the- questions and answers concerning the letters. In our opinion the inquiry as to the letters did not in any way prejudice the rights of the defendant to a fair and impartial trial.

VI.

This brings us to the consideration of the instructions given by the court at the close of the evidence in this cause. We have carefully analyzed the declarations of law embraced in the instructions, and it is only necessary to say that in our opinion whatever error was committed was in favor of the defendant. The instructions as to motive, upon the presumption of innocence, upon circumstantial evidence and reasonable doubt and previous good character and as to statements of appellant, as well as the instruction upon the weight to be attached to appellant’s testimony, the credibility of witnesses and the definition of the terms essential to constitute tlie offense of murder of the first degree were all in form with precedents which have repeatedly met the approval of this court. [State v. David, 131 Mo. l. c. 396; State v. Grant, 152 Mo. l. c. 64, 70, 71; State v. Moxley, 102 Mo. l. c. 388; State v. Nueslin, 25 Mo. l. c. 123; State v. Paxton, 126 Mo. l. c. 508; State v. Maupin, 196 Mo. l. c. 175; and numerous other cases.]

The instruction given in "behalf of the defendant as to the additional presumption of innocence arising from the relationship between appellant and deceased was unauthorized; however, that was an error in appellant’s favor of which he has no right to complain. [State v. Grant, 152 Mo. l. c. 68, 71; State v. Soper, 148 Mo. 217.]

VII.

There is no merit in the complaint in the motion for new trial that the court committed error in not giving other instructions covering the whole law of the case. Upon the facts as developed upon the trial of this cause if the defendant was guilty he was guilty of murder of the first degree, and the instructions were properly confined to that degree of the offense. Upon the facts the court would not have been justified in giving instructions upon any lower grades of the crime. [State v. Palmer, 161 Mo. l. c. 171; State v. Bond, 191 Mo. l. c. 563; State v. West, 202 Mo. l. c. 137; State v. McCarver, 194 Mo. l. c. 742.]

VIII.

We find that the motion for new trial complains at certain remarks of counsel for the State made during the argument of the case. It is sufficient to say of this complaint that the record fails to disclose anything to support this assignment outside of the motion for new trial; hence, it necessarily follows the complaint is not before ns for review. [State v. Meals, 184 Mo. l. c. 259, 260.]

IX.

It is finally insisted that the verdict as returned in this cause is the result of passion, prejudice and partiality. Accompanying the motion affidavits were filed tending to show that one of the jurors, Ed. Me-Christian, made statements in the presence of certain persons that “it was not the evidence given in court in the trial of the case that the jury convicted him on, but on what they heard outside of court, and that there was some evidence that they would not allow to be given in court.”

These affidavits in their last analysis amount to nothing more nor less than an effort to use the statement of a juror for the purpose of impeaching the verdict of a jury, and the trial court very properly did not in passing upon the motion attach any importance to these affidavits. It has been firmly settled in the jurisprudence of this State that a juror upon the panel trying a cause cannot make affidavits or statements impeaching the verdict as returned by the jury. [State v. Cooper, 85 Mo. l. c. 261; State v. Rush, 95 Mo. l. c. 205; State v. Sprague, 149 Mo. l. c. 424, 425.] .

X.

We have given expression to our views upon the complaints as disclosed by the record, and, as before stated, we have not been favored by any suggestions on the part of the appellant as to the complaints made in the motion for new trial; yet this case being one of such a serious character we have given most careful attention to the disclosures embraced in the record and have reached the conclusion that there was no error committed by the court in the trial of this cause which in any way prejudiced the rights of the defendant to a fair and impartial trial.

We repeat that, upon a careful analysis of the evidence as detailed by the witnesses, we see no escape from the conclusion that the deceased met his death at the hands of the defendant. The facts as developed upon the trial fully support the conclusion as reached by the jury. The judgment of the trial court should therefore be affirmed.

All concur.


text:
    THE STATE v. MONT HALL, Appellant.
    Division Two,
    May 26, 1910.
    1. GAMBLING DEVICE: Poker Table: Amendment of Statute. The amendment of 1901 to Sec. 2194, R. S. 1899, by which the words “slot machine, stand or device of whatever pattern, kind or make however worked, operated or manipulated” are added, in no way limits the meaning of section 2194, but those words were intentionally added for the purpose of covering every kind of a gambling table or gambling device adapted, devised or designed for the purpose of playing any game of chance for money or property, when the person setting up or keeping the same induces, entices or permits persons to bet and play at and upon the same. And where defendant and another set up a table in a room of defendant’s hotel, and furnished it with cards and chips upon which divers persons were induced, or at least permitted, to play poker for money, or chips bought from them, and such other took his rakeoff from the winners and divided the proceeds or the “kitty” equally with defendant, their action was a violation of the statute, and no demurrer to the evidence should have been sustained.
    2. -: Instruction: Designed for Poker. It is not necessary that the court, in its instructions, require the jury to find that the table, used in playing poker, was specially .adapted, devised and designed for the playing of poker. If it was a table adapted, devised and designed for the playing of any game of chance for money or property, and defendant set it up and maintained it, and induced or permitted others to bet or play thereupon, he is guilty.
    3. -: -: Inducing Others to Play. If the testimony shows that defendant introduced his friends to the manager of the room in defendant’s hotel, that he played himself and sometimes had charge of the game and shared 1 in the proceeds taken from the winners, the instruction should authorize the jury to find defendant guilty if he “induced or permitted” divers persons to bet and play thereon.
    4. -: Playing Cards: Instruction. The instruction as asked told the jury that “ordinary playing cards are not a gambling device,” and the court modified the instruction to read that “ordinary playing cards are not of themselves alone a gambling device.” Sold, that the meaning of the instruction was not changed by the modification.
    Appeal from Newton Circuit Court. — Non. B. 0. Thurman, Judge.
    Affirmed.

      W. Cloud and O. L. Cravens for appellant.
    (1) The demurrer to the evidence should have been sustained, because the table was not adapted, devised and designed for poker playing in the manner that gambling was done upon it, and such was the trial court’s view of the law as outlined in instruction 7. The table and slot device were entirely covered with cloth. The mere fact that this table was used does not make it a gambling device. Cards themselves have been held to be not a gambling device under the section under which this information is drawn, though they must be used in playing poker. The table used must be something more than an ordinary table, and the devices themselves must be employed. The use of the word table, a general word, or gambling table, in the statute, is controlled by, and limited , to, the specific and special kinds of tables and gambling devices used in connection therewith, as a roulette table, keno table, etc. Above and beyond all, it must be a gambling table. Under the ejusdem generis rule common tables are excluded, as are likewise tables with gambling devices where such devices are not employed in the game. State v. Gilmore, 88 Mo. 206; State v. Bryant, 90 Mo. 534; State v. Mann, 2 Ore. 238. Before defendant can legally be convicted for complicity, tbe gambling device must be A B 0, faro bank, E 0, roulette, equality or keno, and no others, under the ruling in the Gilmore case. The mere setting up, or keeping for playing, of poker chips representing money, with ordinary playing cards, on a table, are not acts prohibited by the statute. And the setting up of a poker table on which are used poker chips and cards for gaming, is expressly held not to be within its prohibition. State v. Etchman, 184 Mo. 200; Miller v. U. S., 6 App. D. 0. 6; Gillen v. State, 55 S. W. (Tex.) 48; Tully v. State, 114 S. W. (Ark.) 920; State v. Hamilton, 67 Atl. (Del.) 836. State v. Mathis, 206 Mo. 604, does not conflict with our position. It is not contended by the State that defendant “set or kept” the gambling devices in question, but only that he permitted Thompson to do so. This does not make a case, and defendant should have been acquitted peremptorily. O’Biennis v. State, 12 Mo. 311. The defendant was tried on the theory that he was an accomplice with Thompson. But Thompson does not make a case against defendant under section 2194. The mere fact that these two were to run a gambling house and divide the winnings, does not entitle the State to convict under 2194. This is the whole case. It is nothing else but that. The only common purpose between the parties, reasonably inferable from any proof in the case, was to run a common gambling house. Such is in substance what Thompson shows so far as the defendant is concerned. That was the only crime which he aided, abetted or assisted in, or of which he could have been legally convicted.' State v. Gilmore, 98 Mo. 206; Nuckolls v. Com., 32 Gratt. 884; State v. Hardin, 1 Kas. 474. The; only conspiracy or common design proved was to run a gambling house and divide the winnings. This shows nothing in violation of section 2194, but does prove a violation of section 2197. The conviction ought not stand on proof of any acts by Thompson outside the common design. If he went further, and did other acts which amount to a crime under 2194, defendant cannot be convicted thereon. State v. May, 142 Mo. 135. (2) There is a total absence of proof showing that defendant “induced or enticed” any one to bet or play upon this table. It is true Thompson says that defendant “introduced” his friends there sometimes; that he played himself and sometimes had charge of the game. But this, while perhaps authorizing a submission of the question, along with the other evidence, as to whether defendant “permitted” playing, does not establish nor tend to establish, in even a remote degree, that defendant “induced or enticed” anyone to play. No evidence was offered as to inducing or enticing by defendant. The circumstances attending the alleged introduction of his friends into the room were not shown, and ought not to be guessed at by the jury. State v. Johnson, 111 Mo. 578; State v. Little, 67 Mo. 624; State v. Tice, 90 Mo. 112; State v. Weaver, 165 Mo. 1; State v. Calla-way, 154 Mo. 91; State v. Bonner, T78 Mo. 424.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The court did not commit error in overruling the demurrer to the State’s evidence, because there was ample evidence for the State that appellant was one of the keepers and proprietors of room 12 in the De Mont Hotel, and received one-half 'of the take-off, proceeds and winnings of the games played upon the table, and that the gambling device — the table — came within the provisions of the statute. State v. Rosen-' blatt, 185 Mo. 114; State v. Mathis, 206 Mo. 604. The Gilmore case, 98 Mo. 206, cited by appellant, is not in point. The prohibition in our statute includes “the setting up and keeping any kind of gambling table or gambling device adapted, designed and devised for the purpose of playing any game of chance for money or property.” State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; Kelly’s Crim. Law, sec. 950; R. S. 1899, sec. 2194; State v. Locket, 188 Mo. 418. (2) The evidence showed that there wére games of chance played upon the table for money, that appellant was one of the keepers of the table, and that at the time of the raid by the sheriff a game was being played by eight persons who were caught in the act. The evidence of Thompson is uncontradicted as to the fact that appellant was a full partner in the business. (3) This court has often held that where there is substantial evidence to show the guilt of the accused, it will not attempt to weigh the evidence, but will adhere to the finding of the jury. State v. Smith, 190 Mo. 706; State v. Groves, 195 Mo. 452; State v. Matthews, 202 Mo. 148; State v. Tetrick, 199 Mo. 100'.
   GANTT, P. J.

On March 24, 1909;, the prosecuting attorney of Newton county filed an information with the clerk of the circuit court of said county, charging the defendant with having on the-day of February, 1909, at the county of Newton, unlawfully and feloniously set up and kept a certain gambling table and gambling device, to-wit, one poker table, commonly so called, upon which cards, commonly called playing cards, were used, which said gaming table and 'gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and unlawfully and feloniously induced and permitted divers persons to bet and play at and upon and by means of said gaming table and gambling devices.

A change of venue was granted from the judge of the circuit court of Newton county, on account of alleged prejudice on the part of said judge against the defendant, and Honorable B. G. Thurman, judge of the Twenty-sixth Judicial Circuit, was selected to try the case.

The defendant was duly arraigned and entered his plea of not guilty and was put upon his trial on the 21st of October, 1909, and convicted, and his punishment assessed at two years in the penitentiary.'

The evidence tended to show that the defendant was the owner of the DeMont Hotel at Seneca in Newton county, and had lived in said town since 1876; that in the fall of 1908, one R. 0. Thompson, a professional gambler, who had gambled in Kansas and Oklahoma continuously for eight years last past, went to the defendant and arranged for room number twelve in his hotel. This room number twelve had been three years previous to this time occupied by a man by the name of Dan Stuckey, who had built and left in the room a gambling table with a slot or slide on top, in which the gamblers- would deposit checks, which was called the bank or take-off of the person running the house. Dan Stuckey also left in this room about one hundred decks of common playing cards and divers red, white and blue poker chips. Thompson used this gambling paraphernalia, but the evidence was that this table had been covered by a cloth, and the slot or slit was not used, but Thompson in playing the game, instead of adding his chip-, would not ante and kept his ante out as pay for the use of the room, which was called the “kitty” or “take-off,” and that defendant and Thompson would divide the proceeds, or what Thompson would win in the game and the “kitty,” equally. Thompson sold checks to the players as follows: the blue at $1.25, white at five cents, and the red at twenty-five cents, and the players would use these chips as money, and when the game was over any of the players having chips had them cashed by Thompson at the same price at which he sold them. If Thompson was not present to attend to the business, the defendant would do it. The door by which they entered the room number twelve was fastened by a spring lock, to which there were two keys, one of which was carried by Thompson and the other by the defendant. On February 9,1909, the sheriff of Newton county raided this room and found nine persons and arrested eight of them. The defendant was the owner of all the gambling paraphernalia.

The evidence on the part of the State tended to show that games of poker for money were often played in this room from the time Thompson formed this partnership with the defendant in September, 1908, until the day of the raid by the sheriff. The evidence also tended to show that the defendant spent a large part of his time in this room. The usual custom was to sell two dollars’ worth of chips to the players to start with, and if they wished more afterwards they could buy as many as they wished. That draw poker was the usual game played in that room. The game of draw poker was fully explained and described in the evidence, but it is not deemed necessary to repeat the description in this statement. The chips, playing cards and table were all offered in evidence before the court and jury.

The defendant testified in his own behalf that he lived at Seneca and had lived there since 1876; that he was the proprietor of the DeMont Hotel; that Dan Stuckey had boarded with him and occupied room number 22 then, but they had since changed the numbers, and it was now numbered twelve, and when he went away he left in the room these poker chips, cards and this table; that the defendant did not own or claim them; that Thompson was a guest in his hotel, came there in August, 1908. Thompson sent Norman Mitchell to see him about coming there; defendant said he did not want to talk to Thompson; that he never made any arrangements with Thompson to divide the profits or winnings in the poker games. Thompson was a high liver .and a good spender. He spent a go.od deal of money around the hotel buying fruit, candies and at the lunch counter. Thompson had one key to the room and defendant the other. Defendant had never had anything at all to do in conducting any game since Thompson came there; had never received any money for checks or paid any money or cashed any checks as keeper or runner of the game. He never invited, solicited or induced anybody to come and play in the room. On cross-examination he testified that he had a number of rooms in his hotel for guests; that the cards, tables and chips in evidence had remained in the room and the table was used to set and pile things on; that Thompson paid for his room and stayed there a good deal of the time; that witness did not know that the boys were gambling much, he himself had been there and played for fun; that on the night of the raid he heard Collier, the sheriff, going upstairs and he followed to investigate. He did not recognize Collier and he wanted to see what he was doing up there; that the boys in this room had rooms upstairs in the hotel; that the lock on the door of number twelve was a Yale lock; that there was no gambling in this room to amount'to anything; that Thompson had offered to give him half the profits and winnings, but he refused and would not let him have it that way.

I. This is a prosecution under the Act of March 19, 1901, amending section 2194 of the Revised Statutes of 1899, by which the words ‘ ‘ slot machine, stand or device of whatever pattern, kind or make however worked or operated or manipulated” are added to said section 2194. The defendant insists that his demurrer to the evidence entitled him to an acquittal and that the court erred in not so directing.

The credibility of the witnesses and the weighing of the evidence were matters for the jury to determine. If the jury believed the witness Thompson, they were justified- in finding that the defendant furnished the room and the table, cards and poker chips and together with Thompson was running regularly a poker table on the day laid in the indictment, and received one-half of the take-off, proceeds and winnings of the game played upon the said table, and that he brought different men to the room and introduced them to Thompson, who was the regular manager of the game, and that in the absence of Thompson the defendant himself managed it. Ffom this state of facts the question arises, was this poker table so adapted, devised and designed for the purpose of playing poker thereon for money or property and the permitting divers persons to bet and play at and upon it for money or property, a setting up and keeping of a gambling device or gaming-table within the meaning of the statute as amended in 1901?

The learned counsel for the defendant earnestly insists that under the Gilmore case, 98 Mo. 206, it was not a violation of this statute. That the facts in this case clearly differentiate it from those in the Gilmore case, we think is obvious. In that case the defendant was the proprietor of a saloon and furnished the persons who came to his saloon cards and chips or checks, and they played such games as seven up, euchre and poker on the ordinary wine and lunch tables which he kept in his saloon; the defendant did' not participate in such game, nor play with anybody against any of the players, but the players bet their money against each other, and not on the side of, of against, the defendant therein, who took no part in the games, either directly or indirectly; the cards and chips used were handed out from behind the bar,_ only to such persons as requested them; the defendant did not have the care or management of the cards or chips or the games played, and had nothing to do with the cards or chips further than to give them to such persons as called for them; he would sell the chips to the players at five cents each when they commenced the game and when they quit he would redeem the chips that each one had at the rate of five cents apiece; and there was no rake-off whatever to him. It was ruled in that case that a pack of playing cards was not a gambling device within the meaning of section 1547 of the revision of 1879, which was in effect the same as section 2194, Revised Statutes 1899. Whereas the evidence in this case demonstrates, at least for the purposes of this appeal, under the verdict of the jury, the defendant was the owner of a room in his hotel, to-wit, he and Thompson alone carried the keys and he was the owner of the cards, table and the poker chips which were used in carrying on poker games in. that room. In a word, this room was used as a gambling room by Thompson and the defendant. Thompson or the defendant in playing the game, instead of adding his chip, would not ante, but would keep his ante out as pay for the use of the room or as a “kitty” or “take-off,” and defendant and Thompson divided the proceeds of Thompson’s winnings and the “kitty” equally. As said by this court in State v. Fulton, 19 Mo. 680, “It was not the losing of money or property that the Legislature intended here to punish, but it was to prevent any person from keeping or setting up any gambling device or gaming table adapted, devised and designed for the purpose of playing games of chance for money or property, and inducing, enticing or permitting persons to play at or bet on such table. The crime was in setting up or in keeping such a gambling device, and permitting persons to bet or play at such table or gambling device.”

In State v. Rosenblatt, 185 Mo. 114, it was earnestly insisted that a crap table and a ehuckaluck table were not such devices as contemplated by the statute, but it was held that the statute was broad enough to and did include the setting up and keeping 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 that while chuckaluck and craps were not named, they were clearly ejusdem generis with those specified in the act. Afterwards in State v. Mathis, 206 Mo. 604, the indictment charged the setting up and keeping of divers gaming tables and gambling devices, to-wit, two poker tables, commonly so called, and one card table, which said gaming tables and gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and that defendant did feloniously induce and permit divers persons to bet and play at and upon the same, and it was earnestly insisted that poker tables were not within the meaning of the statute; that the game of poker did not require a table or device of a certain make and specially adapted, devised and designed for the playing of the game poker alone. But Judge Burgess, speaking for this court, said: “N!or was it necessary that the table should be specially adapted, devised and designed for the purpose of playing poker alone. The statute should not be given any such restricted meaning. It prohibits the setting up or keeping ‘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 the inducing, enticing or permitting ‘ any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played by means of such table or gambling device, ’ always putting it in the disjunctive. It makes no difference whether the table on which the game of poker was played was a gambling-device or not; if it was a table adapted, devised and designed for the purpose of playing any game of chance for money or property, and the defendant permitted any person to bet or play upon such table, he is guilty as charged. That the poker table, so called, was adapted and designed for the purpose of playing games of chance is clearly shown by the fact that games of poker were played thereon, in some of which, at least, the defendant participated.” In State v. Locket, 188 Mo. 415, the contention was that a table and a gambling device, to-wit, a pair of dice, was not a gambling device under section 2194. Judge Fox, speaking for this court, repeated with approval what was said in State v. Rosenblatt, 185 Mo. 114, and held that the statute was broad enough to include such a device.

The foregoing decisions on this question were rendered in construing section 219'4 without reference to the amendment of 1901, which amendment appears not to have been called to the attention of the court, but certainly the words added by that amendment, to-wit, “slot machine,stand or device of whatever pattern, kind or make or however worked, operated or manipulated, ’ ’ in no way limit the meaning of the section prior to its amendment, but were intentionally added for the purpose of covering every kind of a gambling table or gambling device adapted, devised and designed for the purpose of playing any game of chance for money or property when the person setting up and keeping the same induces, entices or permits persons to bet and play at and upon such gaming table, or gambling device, or at or upon any game played on or by means of such table or gambling device or on the side or against the player thereof. Keeping in view the broad language of the statute and the purpose for which it was enacted, so well stated by Judge Ryland in State v. Fulton, 19 Mo. 680, we are unable to distinguish a case in which a person set up and maintained a table for the playing of craps for money or property and a table set up as the table in this case was by the defendant and Thompson, and furnished with cards and poker chips, upon which divers persons were induced or at least permitted to play poker for money or property and the keeper thereof took his regular rake-off from the winners, 'We think the statute is broad enough to include the setting up and keeping a poker table in such manner and under such circumstances, and the circuit court did not err in overruling the demurrer to the evidence interposed by the defendant. Neither are we able to see the difference between this case and the case of State v. Mathis, supra, which is urged by counsel for the defendant. The fact that in the latter case the chips were dropped into the drawer by the players of the game for the proprietor’s rake-off does not differ in principle from the device resorted to by Thompson and the defendant in keeping out their antes or take-offs in the first hlstance. The evidence in both cases established that the defendants had set up and were keeping this game for their own profit and were inducing and enticing and permitting others to play at and upon said tables, and the evil which the statute designed to prevent was accomplished alike in both cases.

II. We do not think there was any prejudicial error committed in permitting Stuckey to explain the use and operation of the table slot as it was originally constructed, as it was developed in his testimony that the slot was covered by a cloth at the time of this raid. Moreover, the court fully instructed the jury on that matter, that, although they might find that it had devices and was designed and adapted as originally constructed to be used as a poker table, yet if it was so covered that such device could not be and was not so used, the defendant was entitled to acquittal.

III. An exception was saved to the giving of the first instruction by the court, for the reason that appellant’s counsel claim there was no proof that this table as used was specially adapted, devised and designed for the purpose of playing poker. The court did not require the jury to find that the table was specially designed for the purpose of playing poker, nor was it necessary, as was said by this court in State v. Mathis, 206 Mo. l. c. 610.

It is also objected to this instruction that there was no evidence that the defendant induced or enticed any one to play upon the table. The instruction authorized the jury to find the defendant guilty if he induced or permitted divers persons to bet and play upon said gambling table and Thompson testified that he introduced his friends there; that he played himself and sometimes had charge of the game. Under these circumstances this objection to the instruction is, we think, not meritorious.

Again it is insisted that instruction number one conflicts with instruction number seven.

Of course, it is elemental that all the instructions are to be considered together. Instruction seven was given on behalf of the defendant, and told the jury that before they could convict the defendant they must find and believe from the evidence that the table in question was adapted, devised and designed for the purpose of playing poker, and unless they so found and believed they should acquit the defendant, and although they might find that it had devices and was designed and adapted as originally constructed for use as a poker table, yet, if the same was so covered that such device could not be and was not used, then in that event they should acquit the defendant. There is no conflict in the two instructions, and instruction number seven was not equivalent to a peremptory instruction to acquit the defendant, as the jury under the two instructions were left free to find under the evidence that, notwithstanding the cloth covered the slot, the table was still designed and adapted to the playing of poker thereon.

IV. Complaint is also made that the court modified instruction number nine requested by the defendant in these words: “The court instructs the jury that ordinary playing -cards are not a gambling device within the charge against defendant herein.” The court modified this instruction so as to make it read: “The court instructs the jury that ordinary playing cards of themselves alone are not a gambling device within the charge against the defendant herein.”

We are unable to see wherein the instruction conveyed any different idea after this modification from what it did prior thereto. After all, it simply tells the jury that ordinary playing cards are not a gambling device under this statute, and the defendant had the full benefit of that instruction and having prayed for it had no cause to complain of it.

As to the other instructions no complaint is made of them, and we have read them carefully and they are as favorable to the defendant as the law would justify.

The jury having been properly instructed and there being sufficient evidence if believed- by them to sustain the charge in the indictment, it is not the province of this court to interfere therewith. Accordingly the judgment must be and is affirmed.

All concur. -


author: PCX, J.

text:
    THE STATE v. PENNY J. TATMAN, Appellant.
    Division Two,
    May 26, 1910.
    APPELLATE JURISDICTION: Former Acquittal: Constitutional Question: Misdemeanor. A violation of the Local Option Law is a misdemeanor, and where defendant, in the circuit court, interposed as a bar to the prosecution his plea of former acquittal of the same offense before a justice of the peace, pleading therein the provisions of the Constitution as to former jeopardy, and the trial court submitted that issue to the jury and they found against him, his appeal does not involve a constitutional question, and the Court of Appeals has jurisdiction. No constitutional right was denied him.

      Appeal from Putnam Circuit Court. — Hon. Geo. W. Wanamaker, Judge.
    Transferred to Kansas City Court of Appeals.

      N. A. Franklin for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, fqr the State.
    The appellant is mistaken in the assumption of having invoked the provision, or the construction of any provision,- of the Constitution in this case. No constitutional provision has been invoked to any greater extent than the provision of the Constitution is invoked in every criminal prosecution. The issue raised by the plea in bar was an issue to be tried by the jury, the same as any other issue, under the rules of evidence together with proper instructions. The question of autrefois acquit was submitted to the jury upon the evidence adduced and the instructions of the court. Therefore no constitutional question is involved, and we request that the casé be transferred to the Court of Appeals.
   PCX, J.

This cause is brought to this court upon appeal by the defendant from a judgment of the circuit court of Putnam county, convicting him of a violation of what is commonly known as the “Local Option Law.”

On July 8, 1909, the prosecuting attorney of Putnam county, Missouri, filed an information in the office of the circuit clerk of said county, duly verified, alleging in said information that the Local Option Law, approved April '5, 1887, had been legally adopted in said county of Putnam, and charging the defendant with selling and disposing of intoxicating liquors in said county of Putnam in violation of said law. At the August term, 1909, of the circuit court of Putnam county, the defendant filed a plea in bar to said information, alleging that on the 24th day of June, 1909, James W. McGree, prosecuting attorney of Putnam county, Missouri, filed an information against the defendant charging him with the same offense as was herein charged, setting out a copy of the information filed before W. 0. Underwood, a justice of the peace for saipl Putnam county, Missouri, and also alleging that the defendant entered his plea of not guilty to the information so filed before said justice of the peace, and that said cause was tried on the 7th day of July, 1909, before a jury of six good and lawful men of said county, selected and elected to try saidi cause, who were duly sworn and qualified, and after hearing the evidence pro and con, said jury returned a verdict in said justice’s court of acquittal, and upon said judgment of acquittal said justice entered judgment of acquittal and taxed the costs of the prosecution against the State.

Defendant further alleged in his plea in bar that the provisions of the Constitution of Missouri, section 23 of article 2, wherein it is provided, “nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty,” were violated, in that said information filed herein alleges the same offense as the one tried in the justice’s court in which the defendant was acquitted, which plea in bar was verified.

The issues as presented by the plea in bar filed by the defendant were presented to the jury along with the other evidence in the case. The jury found the issues upon the plea in bar against the defendant and returned a verdict finding him guilty as charged in the information, assessing his punishment at a fine of three hundred dollars.

At the very threshold of the consideration of this cause we are confronted with the proposition as to whether or not this court has jurisdiction. The offense of which the defendant was convicted is a misdemeanor, and unless the record discloses that some constitutional question is involved, or, in other words, that the defendant was denied in the trial court some constitutional right to which he was entitled, this court manifestly would he without jurisdiction.

We have carefully scrutinized the disclosures of the record and find that the issues upon the plea in bar were submitted to the jury and that there was a finding against the defendant. The trial court did! not deny the defendant the right to a trial by a jury of the issues presented by his plea in bar, and if there was the slightest conflict in the testimony upon the issues presented by such plea then the court had the right to submit it to the jury. It may be that under the evidence as disclosed by the record concerning the plea in bar the court could have very appropriately instructed the jury to find the issues for the defendant, but its failure to give such instruction by no means raises a constitutional question. As to whether or not the facts developed upon the trial of that issue were of such a nature and character as to authorize the court to direct the jury to find the issues for the defendant, are matters which are proper subjects of review in the appellate court having jurisdiction of the cause.

In all criminal prosecutions there are constitutional provisions guaranteeing certain rights to defendants, but it does not follow from this that if a defendant is convicted those constitutional provisions have been violated and are involved in the proceeding-

In this case in order to confer jurisdiction upon this court it must clearly appear that the defendant was denied some constitutional guaranty in the trial court, and, after a most careful examination of the record, we are unable to reach the conclusion that there is any constitutional question involved in this proceeding. To so hold would result in conferring jurisdiction on this court in all appeals in prosecutions for misdemeanors where a plea in bar was interposed and disposed of in the trial court. We are unwilling to so hold.

With these views there is no necessity for setting out the facts developed upon the trial, and the cause is ordered transferred to the Kansas City Court of Appeals for final disposition.

All concur.


text:
    THE STATE v. PATRICK CLANCEY, Appellant.
    Division Two,
    May 26, 1910.
    1. ELECTION: Fraudulent Registration: Evidence. It is competent in the trial of Patrick Clancey, for fraudulently registering at one precinct as John Ross, to show by the registration books of another precinct a registration in his own name. That was competent as an admission that his name was Clancey and not Ross.
    2. MISTREATMENT OF PRISONER: No Assignment. A complaint of the misconduct of the circuit attorney in having defendant after his arrest brought to his office, cannot on appeal be considered unless made in the motion for a new trial.
    Appeal from St. Louis City Circuit Court. — -Ho». Daniel D. Fisher, judge.
    Affirmed.

      C. Or rich Bishop for appellant.
    The State was permitted, over appellant’s objection, to introduce evidence tending to show that appellant had registered in another precinct under the name of Patrick Clancey, the circuit attorney stating that its purpose was to show that appellant “actually registered at another precinct . . . there are two crimes, registering twice,” and promising’ to connect appellant therewith. There was no evidence offered later to show that the appellant had registered or signed any hook in the seventh precinct. The effect necessarily upon the jurors’ minds was that he had so done, and doubtless this led to the infliction of the limit punishment. This testimony was not withdrawn by the circuit attorney at any time, nor was the jury instructed by the court to disregard it; but it remained before the jury, as testimony against the appellant, and was undoubtedly in its effect prejudicial.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    Appellant urges that evidence was permitted to be introduced showing that he had registered in another precinct, (a) In the first place, no such evidence was introduced, as an examination of the record mil show, (b) Such registration would have been competent as an admission of appellant.
   GANTT, P. J.

On September 2, 1908, the grand jury of the city of St. Louis returned an indictment charging appellant with fraudulent registration in that he did on September 14,1908, register under the name, to-wit, that of John Eoss.

On September 28, 1908, defendant was arraigned and, on his refusing to plead, a plea of not guilty was ordered entered for him. On October 7, 1908, a jury was impaneled and sworn and the case was tried, the jury finding defendant guilty and fixing his punishment at five years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled and' defendant was sentenced on the verdict. After proper extensions of time therefor defendant filed his bill of exceptions January 13, 1909.

The State’s evidence tended to show that on September 14th, 15th, 16th and 17th, 1908, a general registration of voters was held in each election precinct of the several wards in the city of St. Louis; that registration judges and clerks in the tenth precinct of the fifteenth ward were duly commissioned and qualified, and were present at the proper place of registration for their precinct at 1903 Olive street, engaged in the performance of their respective duties on the days mentioned; that between three and four o’clock p. m., September 14, 1908, defendant and another entered the place of registration, applied to be registered, was duly sworn, made satisfactory answer to the necessary questions and registered under the name “John Ross,” giving his residence as 2100 Olive street, St. Louis, Missouri. Defendant and his companion were arrested a few minutes later as they emerged from another place of registration, and taken back to 1903 Olive street, where witness identified defendant as the man who had but a few minutes before registered under the name “John Ross.” Defendant, when first arrested, insisted his name was John Ross, and that he lived at No. 2100 Olive street, but at headquarters he gave his name as Patrick Clancey and his residence as 1805 Morgan street. His identification as Patrick Clancey was complete, he having served both as fireman and as policeman under that name.

It was also shown that on September 14, 1908, defendant lived at 1805 Morgan street, and did not live at 2100 Olive street. Defendant offered no evidence.

I. As the indictment with the exception of the name of the defendant is practically a rescript of the indictments approved in State v. Cummings, 206 Mo. l. c. 616, 623, and State v. Tiernan, 223 Mo. 142, it is deemed unnecessary to reproduce it in this opinion, besides the indictment is not challenged by counsel for the defendant.

As already said there is no error in the record proper as to arraignment, the impaneling of the jury, the verdict or the sentence of the court. All these are in dne and proper form. In fact the only errors alleged by counsel for defendant for the reversal of the judgment pertain to the admission of testimony on the part of the State. First, defendant assigns as error that the court permitted Mr. Ellsperman to testify that a general registration was in progress in St. Louis- on September 14, 1908. This same objection was made in State v. Thavanot, 225 Mo. 545, and was ruled adversely to the present contention of the defendant. Nothing need be added to what was said in that case further than that we think the evidence was entirely competent.

II. It is also insisted that there was no evidence that the alleged acts of the defendant were committed in any election precinct. This point also was made in Thavanot’s case, and the testimony was held amply sufficient to establish that the offense was committed in the 10th precinct of the 15th ward of the city of St. Louis. In fact the evidence in this ease is more satisfactory than it was in Thavanot’s case and this point must be ruled adversely to the defendant.

III. Defendant complains that the State was permitted over his objection to introduce evidence tending to show that he had registered in another precinct under the name of Patrick Clancey. An examination of the record will show that all that was done in this respect was the identification of the registration books of precinct seven in the fifteenth ward while the witness Ellsperman was on the stand. The circuit attorney stated that he simply wished to identify the book and would introduce it later on and the matter really stopped with that showing, but we think it would have been perfectly competent to have shown that this defendant, who was charged with having registered under the name of John Ross in the tenth precinct, had actually registered in the seventh precinct as Patrick Clancey. It was- clearly competent as an admission that Ms name was Clancey and not Boss, the name which he had given to the officers of the registration in the tenth precinct. But as already said the testimony did not reach that far, and there is no ground for complaint on that score.

IV. The only remaining complaint is the misconduct of the circuit attorney in having the defendant, after his arrest, brought to him at his office. This complaint is not made in the motion for new trial and of course it is not before us for review. Moreover, this court has expressed itself on this head in State v. Thavanot.

Upon the whole record we find no reversible error and the evidence is sufficient to support the indictment and the instructions of the court are such as were fully approved in State v. Cummings, 206 Mo. 618. The judgment is affirmed.

All concur.


author: POX, J.

text:
    THE STATE v. WILLIAM BORDERS, Appellant.
    Division Two,
    May 26, 1910.
    BILL OF EXCEPTIONS: No Certificate. Where the record fails to show that what is termed the bill of exceptions was ever filed, and there is no certificate of the clerk on the bill indicating the fact and date of filing, the purported bill must be disregarded, and if no errors are in the record proper the judgment will be affirmed.
    Appeal from Iron Circuit Court.- — Hon. Jos. J. Williams, Judge.
    Affirmed,

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid and sufficient; it concisely presents the charge in the language of the statute, and is good under the common law. R. S. 1899, sec. 1875; State v. Moore, 61 Mo. 276; State v. Hunt, 190 Mo. 359. (2) The bill of exceptions is not authenticated or identified. The part of the record that should have been denominated the bill of exceptions is intermingled with the record proper. It is impossible to tell where the bill of exceptions commences and where it ends. The same may be said of the record proper. The bill of exceptions cannot be considered. State v. Weinegard, 168 Mo. 490'; Stark v. Zehnder, 204 Mo. 448; Clay v. Pub. Co., 200 Mo. 673. (3) The bill of exceptions cannot be considered by this court for another reason. There is no certificate of the clerk showing that the bill is a part of the record in the cause. While the bill shows that Judge Williams signed the bill and had made it a part of the record, this will not suffice; the clerk should have certified that it is a copy of the record in the .cause. There is nothing here showing that this bill of exceptions is a part of the record. R. S. 1899, secs. 732 and 1592; Bobbs v. Ins. Co., 31 Mo. 499; Rice v. McElhannon, 48 Mo. 224; Land Co. v. Martin, 125 Mo. 114.
   POX, J.

The defendant, under an information filed by the prosecuting attorney of Iron county, charging him with arson, was found guilty of arson in the third degree, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of five years. Motions for new trial and in arrest of judgment were filed by the defendant and overruled by the court, judgment entered of record, and an appeal allowed defendant to this court.

The defendant is not represented in this court, but an examination of the record fails to show that what is termed thfe bill of exceptions was ever filed; nor is there any certificate of the clerk on the bill, indicating the fact and date of filing.

In Lafollette v. Thompson, 83 Mo. 199, this court said: “There must be an entry of record to make a bill of exceptions a part of the record. This is indispensable in term time- When leave is granted, with consent of parties, to file a bill in vacation, there must be some certificate on the bill itself, signed by the clerk, indicating the fact and date of filing, or some entry made by the clerk in the- records of the court to that effect.” This rule has been stated and approved many times. [Roush v. Cunningham, 163 Mo. 173; Wilson v. Railroad, 167 Mo. 323; State v. Rolley, 135 Mo. 677; Ricketts v. Hart, 150 Mo. 64; Williams v. Williams, 26 Mo. App. 408, and other cases.]

The purported bill of exceptions must be disregarded as not being properly authenticated. We have examined the record proper, and find no error therein. The judgment is affirmed.

All concur.