State v. Maupin , 71 Mo. App. 54 ( 1897 )

Ellison, J.

Statement. The defendant was convicted on an information by the prosecuting attorney filed with a justice of the peace, for playing cards for mi . „ ,. . ’ , money. The information is based on section 3825, Revised Statutes, 1889, and is in the following words:

“State of Missouri, against Luther Maupin. Be-, fore J. 0. Gillespy, justice of the peace for Boone county, state aforesaid.

“J. L. Stephens, prosecuting attorney within and for the county of Boone, in the state of Missouri, informs the court that Luther Maupin, on the-day of December, 1894, at the said county of Boone, did then and there unlawfully play at a game of chance, commonly called poker, for money, with a gambling device, to wit, with a pack of cards used and adapted for the purpose of playing games of chance for money and property, against the peace and dignity of the state.

“J. L. Stephens,

“Prosecuting Attorney.”

The section of the statute aforesaid reads as follows: “If any person shall play at any game whatsoever for money, property or gain with cards, dice or any other device, which may be adapted to or used in playing any game of chance, or in which chance is a material element, or shall bet or wager on the hands or cards or sides of such as do play as aforesaid, every such person shall be deemed guilty of a misdemeanor.”

criminal law information:* gaming. In our opinion the information was properly sustained by the trial court. It clearly and distinctly eharges an offense under the statute quoted, The statute itself says that if a a ^ person plays at any game with cards, for money, he is guilty of a misdemeanor. If the instrument used for play had been some “other device,” it may be it should have been alleged that such device was adapted to or used in playing games of chance, or in which chance was at least a material element. But cards and dice are singled out by the statute, wherein it is declared that if one plays any game whatsoever with cards or dice for money he shall be punished. The state need not allege or prove that cards and dice thus specifically mentioned are a device which may be adapted to or used in playing a game of chance.

criminal procedcmirts'-lifofmanon-, affidavit. II. The information, being filed by the prosecuting attorney, it was not necessary that it should be accompanied by the affidavit of himself, or any other person. State v. Bansberger, 42 466; State v. McCarver, 47 Mo. App. 650.

NNi:ofn™evi“n" tion?e *instluc~ III. There was a plea of former conviction in the recorder’s court of the city of Columbia. The record of that court was introduced and showed that defendant on November 5, 1894, pleaded guilty to gaming on September 8, 1894. At another time he pleaded guilty to the same charge, but of different date within the year 1894. But it was nowhere shown that these offenses were the same as that charged in the present information. The court submitted that question to the jury, but it would have been justified in refusing to do so, since it clearly appears from the record that the acts to which he pleaded guilty and of which he was convicted in this case were not the same.

The defendant had a fair trial and we do not feel authorized to interfere. The judgment is affirmed.

All concur.