Opinion
December 20, 1930.
1. MOTION FOR NEW TRIAL: Within Four Days. The record must show affirmatively that the motion for a new trial was filed within four days after the return of the verdict, or that for good cause shown the court extended the time for filing the motion; and where the record shows no extension, but does show that the motion was filed six days after the return of the verdict, it must be ruled that the motion was filed out of time.
2. ____: In Criminal Cases. The rule governing the time of filing a motion for a new trial in criminal cases is the same as it is in civil cases.
3. ____: Extension: Affirmative Showing. Where the record proper and the bill of exceptions affirmatively show that the motion for a new trial was filed out of time, an extension by the court of the time in which the motion may be filed must be shown by a record of equal verity; the extension cannot be presumed from the fact that the court considered and overruled the motion filed out of time.
4. ____: Bill of Exceptions. The record affirmatively showing that the motion for a new trial was not filed within the time required by law, the appellate court cannot consider the bill of exceptions, although it appears from the briefs that the only point relied upon for a reversal is the failure of the State to make out a case.
5. INDICTMENT: Gambling Device: Setting Up. An indictment charging that defendants did unlawfully and feloniously "set up and keep certain gambling tables and gambling devices, to-wit: one crap table commonly so-called, upon which dice were thrown and used, and one Black-jack table, upon which cards, money and chips were used, which said gambling devices were adapted, devised and designed for the purpose of playing games of chance for money," sufficiently charges that defendants set up and kept all the gambling devices mentioned, tables, dice, cards and chips, and not simply the tables; it charges that all the things mentioned were gambling devices, that defendants set up and kept all of them, and that all were adapted to gambling; it sufficiently charges defendants with a violation of Section 3537, Revised Statutes 1919, which is directed only at setting up gambling devices. [Distinguishing State v. Morris, 272 Mo. 522.]
Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.
AFFIRMED.
Fred W. Coon, Harold E. Marshall and Walter A. Raymond for appellants.
(1) The indictment is insufficient to charge defendants with the commission of a crime. (a) The indictment is invalid for the reason that it does not aver that defendants set up, furnished and kept the dice, or cards, money and chips without which the gambling device was incomplete. State v. Wade, 267 Mo. 249, 183 S.W. 598; State v. West, 11 S.W.2d 1032; State v. Morris, 272 Mo. 522, 199 S.W. 144. (b) The indictment is fatally defective in that it fails to sufficiently describe the crap table and black-jack table. State v. Harper, 190 S.W. 272; State v. Shepherd, 192 S.W. 427. (2) The evidence is wholly insufficient to support a conviction of any of the defendants. State v. Solon, 247 Mo. 782; State v. Clein, 154 Mo. App. 686; State v. Patton, 255 Mo. 245; State v. Miller, 234 Mo. 588.
Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General for respondent.
(1) The indictment is sufficient to charge an offense under Sec. 3537, R.S. 1919. State v. Rosenblatt, 185 Mo. 114; State v. Fulton, 19 Mo. 680; State v. Baughman, 184 Mo. 192; State v. Sidenbender, 185 Mo. 124; State v. Locket, 188 Mo. 415; State v. Hall, 228 Mo. 456; State v. Chauvin, 231 Mo. 31; State v. Cannon, 232 Mo. 205; State v. Wolf, 230 Mo. 676; State v. Lee, 228 Mo. 480; State v. Holden, 203 Mo. 581; State v. McKee, 212 Mo. 138; State v. Johns, 259 Mo. 361; State v. Lawson, 239 Mo. 591; State v. Mathis, 206 Mo. 604; State v. Williams, 273 S.W. 1069; State v. Greer, 6 S.W.2d 842. (2) The motion for new trial being untimely, only the record proper is before this court for review. Sec. 4079, Laws 1925, p. 198; State v. Taylor, 301 Mo. 438; State v. Emry, 18 S.W.2d 10; State v. Harrison, 29 S.W.2d 63.
An indictment was returned by the grand jury in the Circuit Court of Jackson County charging the defendants with setting up and keeping gambling devices, in violation of Section 3537, Revised Statutes 1919. On the trial, April 11, 1929, the defendants were found guilty, each by a separate verdict, and punishment assessed against each at six months' imprisonment in the county jail. All the defendants appealed.
I. The verdicts were returned April 11, 1929, and the record shows defendants filed their motion for new trial April 17, 1929. April 11th was Thursday, and April 17th was the Motion for Wednesday following. Thus the motion was filed out of New Trial. time. The record must show affirmatively that the motion for new trial was filed in time. [St. Louis v. Boyce, 130 Mo. 572; City of St. Louis v. Glennon, 229 S.W. 205; Bollinger v. Carrier, 79 Mo. 318; State ex rel. v. Sanford, 181 Mo. 134, l.c. 136; State v. Brown, 206 Mo. l.c. 506.]
The rule governing the time of filing such motion is the same in criminal cases as it is in civil cases. [State v. Fawcett, 212 Mo. l.c. 737.] Section 4079 as amended by the Act of 1925 (Laws 1925, p. 198), provides that for good cause shown the court may extend the time for filing a motion for new trial.
Both the record proper and the bill of exceptions affirmatively show the motion was filed out of time. There would have to be a record of equal verity showing such extension, which could not be presumed from the fact that the court considered and overruled the motion. It was said in the Brown case, supra, l.c. 507:
"It is true that the trial judge heard and considered the motion for new trial just as if it had been duly filed, and then overruled it, which he had no power to do, the motion not having been filed in term time."
We are unable to consider the bill of exceptions. Although it appears from the briefs that the only point relied upon is the failure of the State to make out a case, and it seems from the argument the evidence supports the allegations of the indictment.
II. It is claimed further, and argued at length, that the indictment is insufficient. It is as follows, Indictment. omitting caption and signatures:
"The Grand Jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn and charged to inquire within and for said county, upon their oaths present and charge that Jess Blanchard, Robert Gooding, A.J. Crabtree and Floyd B. Brown whose christian names in full are to the said Grand Jury unknown, on the 12th day of October, 1928, at the County of Jackson and State of Missouri, did then and there unlawfully and feloniously set up and keep certain gambling tables and gambling devices, to-wit: one crap table commonly so-called, upon which dice were thrown and used, and one Black-jack table, upon which cards, money and chips were used, which said gambling devices were adapted, devised and designed for the purpose of playing games of chance for money and property, did then and there unlawfully and feloniously entice and permit divers persons, whose names are to the said Grand Jurors unknown, to bet and play at and upon and by means of the said gambling tables and gambling devices, against the peace and dignity of the State."
It is claimed that the indictment does not aver that the defendants set up the dice, cards and chips which constituted the gambling devices mentioned in the indictment.
The allegation is that the defendants did "feloniously set up and keep certain gambling tables and gambling devices, to-wit:
"One crap table, commonly so called, upon which dice were thrown and used, and one Black-jack table, upon which cards, money and chips were used, which said gambling devices were adopted, devised and designed for the purpose of playing games of chance, etc."
The only defect claimed in these averments was that the defendant only set up and kept the crap table and the black-jack table, which were not necessarily gambling devices. The tables were only part of the devices mentioned. The defendants set up and kept the gambling devices (plural), one crap table upon which were used other devices mentioned. Then follows "which said gambling devices" (plural), "were adapted, devised and designed," etc. That means the gambling devices which the defendants were alleged to have set up. It is a strained construction to say that the defendants would not understand that they were charged with setting up and keeping all the gambling devices mentioned, dice, cards, and chips, as well as the tables. No juror could understand that the defendants only set up the tables. The device consisted of the table and the dice used upon it, and the black-jack table and the cards, chips and money used upon it. If the averments lacked the certainty and precision of form which would satisfy the defendants their remedy was to attack it before the trial by motion or otherwise. There was no objection to it. They went to trial upon it as it read as if fully informed of the nature and cause of the accusation.
A number of cases considering this Section 3537 are cited, some of them holding informations insufficient and others holding them sufficient. The reasoning in those cases is such as might give rise to the claim of hair-splitting distinctions, but each of the cases is based upon solid ground as to the exact meaning and import of the word used. Cases somewhat similar to this are State v. Greer, 6 S.W.2d l.c. 842; State v. Williams, 273 S.W. 1069. In each of those the information was held sufficient.
Appellants rely upon State v. Morris, 272 Mo. 522, and State v. West, 11 S.W.2d 1031, which follows the Morris case. In the Morris case the indictment averred only that the defendant set up and kept a gambling device, to-wit, a poker table. There was no allegation as to how or in what way the poker table was designed to serve the purpose of a gambling device. It was pointed out that one table probably would serve as well as another, upon which to play poker. The indictment averred that upon said table packs of cards and poker chips were used, but does not aver that the defendant set up the cards and poker chips or placed them there; they may have been brought by the customers. It was further noted that Section 3537 (then Sec. 4750, R.S. 1909) was not intended to prohibit gambling in any place. That was covered by another section which made it a felony for one to permit gambling on his premises. Section 3537 is directed only at setting up the devices. The opinion in the Morris case stated in what way a good indictment could be framed to cover the particular offense attempted to be charged there. The indictment in this case substantially meets that suggestion. There is no reasonable construction of the indictment by which it would not allege that the defendants set up the gambling devices described, the crap table and the dice, the black-jack table and the cards and chips.
The judgment accordingly is affirmed. All concur.