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State v. Ellis

State v. Ellis, 4 Mo. 474 (1837)
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Court
Supreme Court of Missouri · State Highest Courts
Decided
May 15, 1837
Judges
Tompkins
Citations
4 Mo. 474
Cited by 8
Headnotes
1. An indictment framed on the 17th Sec. 8th Art. concerning Crimea and punishments is not vitiated by an omission of the words ufor mono/ ot property in describing the device thafwrs. pérmitted-to be set up — provided they are employed .in describing the games that Wereallowed tobe played on such device, ; ■ . 2. Charging the offence in t-hfe alternative, following the words of the statute, is not fatal, when the descriptive words in the statute are synonimous, . .. ■. .... . 3. It is unnecessary to allege by whose permission the betting, gambling, &e. was done, .the proprietor of the house where the device was kept being responsible for the use made of it. statement of the' opinion of tlie court, An . ^"med oTthcf 17th sec. 8th Art. concerning ig not vitiated by an omission of the do-scribing the de-vip° *at was P01'Sp--provided S6t they are employ-edin describing were Tuoiyoií to be played on such device, Charging the ok fence in the tiiTwoid^'oFthe stnt., is not fatal° when the descriptive words m the irnous? We synon' It is unnecessary tem?raiobyAe°Se^s Eetthlg,gambling &c. was done, the fouse0 where the device was kept being responsible for the use made state has no ofcnmtiúaiacases,m where the defend-anlhas J”1!6;”*,! jury,
Summary
Statement of the case made, and opinion of the court delivered by Tompkins J. The indictment, charges that, the defendant did suffer or permit a certain gambling device, adapted, devised designed for the purpose, of, playing a -game of chance, then and there to be used for the purpose of gaming,. in a certain hquse.then and there occupied by him;,which said gambling device so suffered or permitted to be used as aforesaid,.then and there consisted of a.common.box , used ás a table, and a pack,,of .cards, With which device, idle and ill disposed persons/were thén and there permit ted to-play at cards, and bet money and property on divers games of chance, and then and there to. gamble at said games of chance, &c. The. court, on motion of the defendant quashed the indictment,, and the cause comes up on appeal by the State to this court. The reasons assigned for quashing the indictment, ánd now urged for the of the 1st. Because said indictment is uncertain. 2d. Because it is argumentative,. 3d. Because it alleges the offence in the.alternative.. 4th. Because said indictment doejs not allege that said’ gambling device was adapted, devised and designed fot' playing a game of chaiice for money or property. 5th. Because said indictment omita some of the words of the statute that are descriptive of the offence, and said indictment is otherwsie informal* &c. If the indictment were framed on the 18th section of the 8th article of the act concerning crimes and punishments, late R. C. 208, evidence of the facts set out in the indictment,'it is believed, would sustain it; but the face ©f the indictment clearly shows that it was framed upon the 17th sec. ©f said article; which provides “that every person who shall suffer or permit any gaming table, hank or device prohibited by the preceding provisions, to be set up or used, &c. &c.” Now the devices prohibited by the preceding provisions are: “A. B. C. Faro, E. 0. Roulette, Equality or any kind of gambling table or gambling device, adapted, devised arid designed for the purpose of playing any game of chance for money or property.” The indictment does not allege that the device mentioned was adapted, devised and designed for playing, &c. either for money or property, although those words constitute part of the description of the offence given by the statute, and that omission is fatal — 1 Chitty’s ■ Crim. law, 235-6 top paging. The indictment charges that the defendant suffered or permitted. Now, either to suffer or permit constitutes the offence; and it is believed to be indisputable law, that either the one or the other should be charged separately or both jointly, by substituting the copulative for the disjunctive conjunction. The indictment alleges that with said device, &c. idle' persons were permitted (without alleging by whom) to play at cards and bet money and property, &c. and to gamble at said games of chance or gambling device.— The indictment is uncertain, because it does not, except by inference, allege who permitted, &c. and because it does not appear whether the betting was at the game or at the device. It will easily be seen by examination of this indiet-men, that it charges no offence known to the statute.— The statute says lie that shall “setup or keep any gaming table, &c. shall be liable.” Jiow, it is not said that he done the one or the other, either that he set it up or kept it. Nor is it said that he permitted any person to play on the table, and the playing may have been permitted by him. Again it is said that persons were permitted to play at cards and bet money or property, on divers games of chance. Now, the playing ought to have been shewn to have been upon some of the tables mentioned in the statute. For these reasons, it is believed the judgment of the circuit court in quashing the indictment will be affirmed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Tompkins

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Opinion of the court delivered by Tompkins J.

This indictment is framed on the 17th section of the 8th article, concerning crimes and punishments, by which it is provided that any person who shall suffer or permit any gambling table, bank or device, prohibited by the preceding provisions, to be set up or used for the purpose of gaming in any house, building, &c. to him belonging, or by him occupied, &c, shall on conviction, be adjudged guilty of misdemeanor, &c. The points made by the defendant are: 1st, that the words used as descriptive of the offence are not sufficient, and that the omission to use all those used in the statute is fatal. 2d. That the indictment is too uncertain in charging the of-fence, viz: in stating that the defendant suffered or permitted &c. 3d. That, in the indictment it is alleged that idle persons were permitted to’play, bet, &c. without alleging by whom they were permitted, and because it does not appear whether the betting was at the game or at the device.

1. The want of accuracy specified under this point is, that in the indictment, it is not alleged as in the statute .that the gambling device was adapted, devised and designed for the purpose of playing any game of chance for money or property; and to support this point, 1 ty’s criminal law, page 235-6 is cited. Nothing on either of those pages is found to support the point here made. The general rule,as it is expressed in a (Vaughn v. The State) decided at Palmyra at the last April term, is that so many of the words used in the statute to describe the offence as are necessary shall be used to state it in the indictment. That case is not before us now, nor are the authorities within our reach. It seems to us amply sufficient to say that the defendant permitted a certain gambling device, adapted, devised and designed jfor the purpose of playing a game of chance, without ádding, as in the statute, these words ‘for money or property.” In the indictment they are wholly useless, *477 except for charging that the defendant did permit persons to Bet or play for money or property. The mere keepitig such a device in one’s house is no offence against law'. "Bets may be made on any game of chance, and probably many' persons keep the tables or devices in their houses who'iievér intended that money or property should be'bet on them.'' The proof that they are kept for the purpose' of playing games of chance for money or property on is, that some persons'are' permitted to play for money or property on such devices.

Charging the ok fence in the tiiTwoid^'oFthe stnt., is not fatal° when the descriptive words m the irnous? We synon' It is unnecessary tem?raiobyAe°Se^s Eetthlg,gambling &c. was done, the fouse0 where the device was kept being responsible for the use made

2. The second point is, thát the indictment is too uncertain, in stating the defendant was suffered" or permitted. This court is disposed to regard those two words as having here precisely the same meaning. The wi iter ^ias l°sf ^is labor in using both of them, as it seems to us, one of them would have served his turn as well. Page °f Chitty’s criminal law above referred to, (P* 236) it is said that an indictment stating that the de-fendant “murdered or caused to be murdered” is bad, because too uncertain — because the defendant is not in-’ formed against which charge he is to be prepared to defend. But surely the defendant in this indictment could not with agrave face say he did not know whether he should defend against suffering or against permitting idle and ill disposed persons to play, &c.

3. The third point is, that it is' not stated in the indictment by whom these idle persons were permitted to bet, play, &c. It is charged" in "the indictment that the défendant permitted "this gambling device to be kept in ^ouse’ and we must hold him answerable for the use made thereon of if. If he ini ployed'an agent to super-intend it, and he permitted playing &c. tlié deferidánt his acts and is the

It is"the opinión of this 'court that the circuit committed error in quashing the indictment. Its ment is therefore reversed and the cause is remanded.

state has no ofcnmtiúaiacases,m where the defend-anlhas J”1!6;”*,! jury,

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 8 cases

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1854–1855: 21868–1869: 11874–1875: 11888–1889: 11900–1901: 11924–1925: 11962–1963: 118542026peak 1854 · 2

Relies on it most ⓘ

  1. State v. Virdure371 S.W.2d 196 (Mo. 1963)
  2. People v. Tomlinson35 Cal. 503 (1868)
  3. Henderson v. State39 S.E. 446 (Ga. 1901)
  4. State v. Moore61 Mo. 276 (1875)
  5. State v. Brown236 P. 663 (Kan. 1925)
  6. State v. Gilmore98 Mo. 206 (1889)

Most recent

  1. State v. Virdure371 S.W.2d 196 (Mo. 1963)
  2. State v. Brown236 P. 663 (Kan. 1925)
  3. Henderson v. State39 S.E. 446 (Ga. 1901)
  4. State v. Gilmore98 Mo. 206 (1889)
  5. State v. Moore61 Mo. 276 (1875)
  6. People v. Tomlinson35 Cal. 503 (1868)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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