State v. Young , 163 Mo. App. 88 ( 1912 )

COX, J.

Prosecution by information for gambling. This case originated in justice court and in that court, these defendants and one Robert Shields, who was jointly charged with them, were all convicted and appealed to the circuit court. In that court the appeal was dismissed as to Shields and upon trial by jury, the other defendants were convicted and have appealed to this court.

A motion to quash the information was filed, overruled, and exception saved. The formal parts of the information were in the usual form. The charging part of the information is as follows: £ ‘ That said defendants, Wm. G-ilmore, Natt Young, Bob Shields, Bene Martin, Elbert Hobbs, and Vm. Perry on the - day of July, A. D'. 1911 at said county of Dade did then and there unlawfully bet a sum of money, to-wit, 25 cents upon a game of chance, commonly called ‘craps’ and then and there played by means of a certain gambling’ device, to-wit, dice, and a blanket adapted for the purpose of playing games of chance for money and property.”

Objection is made that this information is not good under any section of the statute. There are but two sections that it can be placed under, to-wit, sections 4751 and 4764, Revised Statutes 1909. As to section 4751, it is contended that the gambling devices mentioned therein are the same as those covered by section 4750 only, and that dice and a blanket are not included in section 4750 and therefore not included in section 4751.

Section 4750 as far as it relates to the question in hand is as follows: “Every person who shall set up or keep any table or gaming device commonly called ABC, faro bank, roulette, equality, keno, slot machine, stand or device of whatever pattern hind or mahe, or however worked, operated or manipulated, or any kind of gaming 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. . . .” The words italicized were added by amendment in 1901.

Section 4751 is as follows: “Every person who shall bet any money or property upon any gaming table bank or device prohibited by the preceding section, or at or upon any other gambling device, or who shall bet upon any game played at or by means of any such gaming table or other gambling device. . . .” (The italics are ours.)

The Supreme Court of this state has construed section 4750 to be restricted to the gambling devices named therein and others of a like kind, under the rule of construction which requires that “where a particular class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive and the general words treated as referring to matters ejusdem generis with such class.” [State v. Bryant, 90 Mo. 534.] The strict construction put upon that section, however, was very much modified in later cases before the amendment of 1901 as the discussion of this section in later opinions of the court will show. [See State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975; State v. Lockett, 188 Mo. 415, 87 S. W. 457; State v. Mathis, 206 Mo. 604, 105 S. W. 604.] Since the amendment of the statute -in 1901, the Supreme Court has held, as we understand it, that section 4750 as it now stands is broad enough to cover all gambling’ devices of whatever kind or character that are adapted, devised, and designed for the purpose of playing games of chance for money or property whether they are of the same general class as those specifically named in that section or not, when such gambling device is set up or kept for the purpose of inducing, enticing or permitting persons to gamble therewith, and persons are, in fact, induced, enticed, or permitted to do so. [State v. Hall, 228 Mo. 456, 128 S. W. 745; State v. Lee, 228 Mo. 480, 128 S. W. 987; State v. Chauvin, 231 Mo. 31, 132 S. W. 243.]

In the Hall case, attention was called to the amendment of the statute, and also to the fact that in some of the former decisions of the court, their attention had not been directed to the amendment, and in speaking of the words added by the amendment it is said that they “were intentionally added for the purpose of covering every kind of gambling table or gaming device adapted, devised and designed for the purpose of playing any game of chance fox money or property where 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 on' the side or against the player thereof,” Under the authority of this case, this statute, section 1750-, now covers all kinds of gambling devices which are adapted, devised and designed for the purpose of playing games of chance when used as above stated, and an information charging, in the language of the statute, that the particular gambling device described in the -information was then and there adapted, devised and designed for the purpose of playing games of chance for money and property is sufficient. [State v. Mathis, supra.] The proof required to sustain a conviction is satisfactory if it shows'that the device was of the character just described and was kept for the purpose of permitting persons to play games of chance thereon for money or property. If, therefore, we adhere to the rule that section 4751 covers no gambling device not included in section 4750, dice and a blanket are a gambling device within the meaning of both sections when used as above described. We, therefore, hold the information good as against the objection that dice and a blanket are not a gambling device within the meaning of the statute. Whether they are or not is a question of proof depending upon the use made of them.

If, however, this information were drawn under section 4750 it would be bad for another reason. It does not follow the language of that section and does not charge that the gambling device, to-wit, dice and 'a blanket, were adapted, devised and designed for the purpose of playing games of chance for money and property but only charges this device was adapted for the purpose, etc. It has been held by the Supreme Court of this state that “the terms ‘adapted, devised and designed,’ applicable to the devices not specifically named in section 4750 are not merely words descriptive of the offense, but they are essential facts ■forming an important part of the definition of the offense. To properly define the offense as to a device that is not specially mentioned in the statute, it must be alleged that the device was adapted, devised and designed for the purpose of playing games of chance for money or property,” and that the use of these words or words of the same meaning are essential in charging a party with keeping a gambling device not named in this statute. [State v. Etchman, 184 Mo. 193, 83 S. W. 978.] Dice and a blanket not being named in section 4750 and the essential allegations above mentioned being omitted in this information, it would not be good under section 4750. That section does not cover all gambling devices that are adapted to, that is, appropriate for, playing games of chance but to come under that section they must also be devised and designed for the purpose of playing games of chance. This information not being good in this particular under section 4750, it is not good under section 4751, unless that section is broader than section 4750 and includes gambling devices not included in that section.

It was held in State v. Bryant, 90 Mo. 534, that what are now sections 4750 and 4751 were identical in so far as the gambling devices covered by the two sections is concerned and if we are bound by that case, then we must hold this information bad under section 4751 because it would not be good if drawn under section 4750'. That case was decided under Revised Statutes 1879 in which these two sections were sections 1547 and 1548. The charge was under section 1548 which corresponds to 4751 under the present statute and in commenting upon the scope of this section, the court Said: “It is very evident to my mind that the words ‘or other gambling' device’ employed in section 1548 (now 4751) is only designed to apply to such gambling devices as are of a kindred nature and similar kind to those mentioned in section 1547 (now 4750).” In the later ease, however, of State v. Gilmore, 98 Mo. 206, the court in commenting upon the difference in the same two sections at pages 213 and 214 uses this language: “Another rule of construction is, ‘that every word and clause should, if possible, have assigned to it a meaning leaving no useless words. . . .’ So if every kind of gambling device was intended to be included in the class of devices mentioned in this section (meaning* section 1547, now 4750) what is the necessity in section 1548 (now 4751) after providing* a penalty for anyone who should bet upon any gaming table bank or device prohibited by section 1547 (now 4750) of adding the words ‘or at or upon any other gambling device?’ Evidently they were used because in the mind of the legislator the gene.ral words in the preceding section being limited to devices of the kind mentioned it was necessary to use additional words to include devices not of the class mentioned, otherwise, they are useless.” Also on pages 214 and 215'it is said: “That ordinary playing cards were not within the meaning of the lawmaker’in section 1547 (now 4750) as it appears in the original law covering this subject (Revised Statutes 1825, page 308, section 87), and that they were within his meaning in the two following sections 1548 (now 4751) and 1549 (Revised Statutes 1825, page 310, sections 88-89) is clearly apparent.” The language of the sections referred to in Revised Statutes 1825’ is practically the same as in the present statute. The Gilmore case is a later case than the Bryant case and it is our duty to follow it, and it, in. effect, overrules the Bryant case on the question of the scope of section 4751 being restricted to the same gambling devices included within the terms of section 4750:

From a review of all the cases above cited our conclusion is that section 4750 now covers all gambling devices adapted, devised and designed for the purpose of playing games of chance when they are set up and kept in a ffxed place for the purpose of enticing or permitting persons to play games of chance therewith for money or property. That section 4751 covers all gaming devices adapted for the purpose of playing games of chance when used to play a game of chance for money or property even though such device may not be set up or kept as provided in section 47501.

The only remaining question as to the sufficiency of the information under section 4751 is, whether dice and a blanket are a gambling device with which games of chance are played. The information alleges that they are, and as all gambling devices of this character are covered by section 4751, this charge in this information is sufficient, and the question whether or not dice and a blanket are such a gambling device becomes one of proof. This statute is directed against those who bet upon gambling devices or bet upon games played at or by means of gambling devices, ánd as this statute reaches all gambling devices with which games of chance are played, it is not necessary in an information under this section to charge that the gambling device was adapted, devised and designed fox the purpose of playing games of chance but it is sufficient to allege that the device was adapted to playing games of chance as was done in this case, or that it was a device with which games of chance are played. [State v. Torphy, 66 Mo. App. 434; State v. Trott, 36 Mo. App. 29.]

The remaining question in this case is whether the proof sustains the charge in the information. The charge is specific and charges that the defendants bet a certain sum of money, to-wit, 25 cents on a game of chance, commonly called craps, played with dice. The evidence fox the state briefly stated is, that the sheriff came upon these defendants and three others out in the woods. They were hunkered down around a horse blanket and one of them was seen to throw something on the blanket that looked like dice. When the sheriff was discovered approaching them they all grabbed for something on the blanket and two of them ran away. When the sheriff came up to them, one, who had dice in his hand, said: “I reckon I have got a right to shoot dice on my own place.” Had the charge in the information been broad enough to have covered betting other kinds of property as well as money, we should be inclined , to hold the evidence sufficient to show that they were playing for a stake of some kind and were therefore guilty. [State v. Hayes, 154 Mo. App. 588, 136 S. W. 8.] But since games may be played for property of other descriptions as well as for money, we are not prepared to say that proof that parties are engaged in gambling is proof that they were gambling for money. "Where a statute contains several things in the alternative and the indictment or information charges all conjunctively, proof that the offense was committed in any one of the ways charged which is forbidden by the statute will be sufficient. [State v. Murphy, 47 Mo. 274; State v. Miller, 188 Mo. 370, 87 S. W. 484; St. Louis v. Theater Co., 202 Mo. 690, 100 S. W. 627.]

Had the prosecution in this case followed that rule and charged that the defendants bet money and property, a case could then have been made by proof of facts which would warrant a finding that the defendants were playing for something of value without specifying the particular thing for which they were playing. We know of no authority, however, fo.r the position that a charge of violating the law in one of the ways forbidden may be sustained by proof that it has been violated in some other way forbidden by the same law. When the state charges a violation in a particular way, it must be bound by the position it takes and is not entitled to a verdict in its favor unless it makes proof of the particular charge which it has made. [State v. McNerney, 118 Mo. App. 60, 94 S. W. 740; State v. Fay, 65 Mo. 490; State v. English, 67 Mo. 136; State v. Moore, 178 Mo. 348, 77 S. W. 522.] The state having failed to prove that the defendants bet money as charged, a verdict of acquittal should have been directed.

While we think this information good under section 4751 and do not pass upon the question of its sufficiency under section 4764, yet, when the evidence shows, as it does "in this case, that the parties charged played at the game and used cards o.r dice, the better practice would be to proceed under section 4764 and charge the parties in the language of that section with playing, at a game for money, property or gain with cards or dice as the case may be. If the kind of propexty or gain played for is unknown that allegation could Tbe made and in that event the state would not he required to prove that the game was played for a designated kind of property. Judgment reversed and cause remanded.

Gray, J., concurs. Nixon, P. J., concurs in the result and is of the opinion that the information is good under section 4751, Revised Statutes' 1909.