State v. Washington.

Upon another ground this instruction contains er ror which will necessitate a retrial of this case. The indictment charged that the defendant did "set up and keep divers gaming tables and gambling devices, to-wit, one crap table, commonly so called, and one poker table, commonly so called," etc., etc. There was testimony, though of different witnesses, tending to prove the setting up and keeping of each gambling device as charged. The instruction under review told the jury that if they found from the evidence that the defendant did "set up and keep certain gaming tables and gambling devices, to-wit, a crap table

or either of them

and

then

a poker table you will find the defendant guilty as charged," etc., etc. The verdict was: "We, the jury in the above entitled cause, find the defendant guilty as charged in the indictment, and assess the punishment at two years in the penitentiary." In directing the jury that they should return a verdict of guilty if they found that the defendant set up and kept both or either of the gaming devices charged, the court erred. The defendant was entitled to a unanimous verdict of the jury upon the issue of his guilt or innocence of the particular offense for which he was on trial. Under this instruction and the general verdict returned, some of the jurors may have believed the testimony in support of the charge as to one of the gaming devices and disbelieved the testimony as to the other, while the remaining members of the jury may have found and believed conversely.

It is well established law that the verdict must be definite and certain as to the crime of which the accused is found guilty. If the instruction had submitted the case upon the theory of guilt as to both gambling devices (no motion to quash or elect having been filed), or as to one of such devices, specifically designating it, the conviction could have been sustained. But in

State v. Jackson.

the form in which the instruction was given it cannot be determined from the record whether the defendant was convicted of setting up and keeping both tables described or of only one, and if the latter, then which one. For these reasons, under the decisions of this court, the instruction was clearly erroneous. [State v. Schenk, 238 Mo. 429; State v. Standley, 232 Mo. 23; State v. Pierce, 136 Mo. 34; State v. Pruitt, 202 Mo. 49; State v. Palmberg, 199 Mo. 233.]

Notwithstanding the strong evidence of the defendant's guilt, because of error in the instruction, the judgment must be reversed and the cause remanded. It is so ordered. Ferriss, P. J., and Brown, J., concur.

THE STATE v. OLLIE JACKSON, Appellant.

Division Two, May 9, 1912.

1. INDICTMENT: Gambling Device: Two Tables: One Felony. If the accused, as a part of the same unlawful transaction and with the same felonious purpose, sets up and keeps two or more gambling tables, whether of the same or a different kind, it is but one felony and one indictment charging it is sufficient.

2.

:

-: Vague and Uncertain: Cards on One Table: Dice on Another. It is not necessary to charge that dice were played on one gaming table and cards on another, or dice and cards on both, and the indictment is not vague and uncertain because it does not so charge.

3. JURORS: Railroad Employees: Directory Statute. The statute exempting railroad employees from jury service in the city of St. Louis is directory, and a convicted defendant is not entitled to a reversal of the judgment on the ground that the trial court overruled his challenge to three railroad employees summoned as talesmen.

4. GAMBLING DEVICE: Keeping and Setting up: Competent Evidence. Where the charge in the indictment is for keeping, as well as for setting up, gambling devices, which necessarily implies a lapse of time in the commission of the crime, so as to make it a continuing offense, any facts and circumstances connected with the place where the gambling device is kept during such time, tending to prove the charge, or concerning the

State v. Jackson.

conduct of the defendant in the management of the device, or any other gambling device in the same room or place and con. ducted as a part of the same plan or scheme, should be admitted in evidence.

5. INSTRUCTION: General Verdict. The defendant is entitled to a concurrence of the minds of the jurors upon one definite charge of crime, and the verdict must be definite and responsive to such charge. Where under the instruction the jury may have convicted the defendant of keeping either of two gambling tables charged, one a poker table and the other a crap table, and some may have agreed to a verdict of guilty as to one table, and others to the same verdict as to the other table, and the verdict returned simply finds "the defendant guilty of setting up and keeping a gambling device, as charged in the indict ment," the verdict cannot stand.

Appeal from St. Louis City Circuit Court.-Hon. George C. Hitchcock, Judge.

REVERSED AND REMANDED.

John A. Gernez and Thos. J. Rowe, Jr., for appellant.

(1) The indictment should have been quashed as uncertain, vague and indefinite and because of duplicity in charging two separate and distinct offenses. State v. Lee, 228 Mo. 499; State v. Chauvin, 231 Mo. 40; State v. Carragin, 210 Mo. 270; State v. Huffman, 136 Mo. 58; State v. Clevenger, 20 Mo. App. 628; State v. Bach, 25 Mo. App. 554; State v. Smith, 31 Me. 386; State v. Fidment, 35 Iowa, 541; State v. Burke, 151 Mo. 136. (2) Challenge to jurors for cause should have been sustained, as they are disqualified by statute. R. S. 1909, secs. 7341, 7342; State v. Wellser, 117 Mo. 577; Williamson v. Transit Co., 202 Mo. 365; Theobald v. Transit Co., 191 Mo. 418. (3) The court erred in admitting incompetent and irrelevant testimony; in admitting testimony that was hearsay; conclusions of witnesses, and merely matters of opinion. It was error to permit the State to impeach their own witness, Wm. Ransom. State v. Shapiro, 216 Mo.

State v. Jackson.

359; Joyce v. Transit Co., 111 Mo. App. 565; Caldwell v. Bank, 100 Mo. App. 23; Hamilton v. Crowe, 175 Mo. 634. It was error for the court to pass upon the credibility of witness Ransom. State v. McKenzie, 177 Mo. 699; State v. Nolle, 96 Mo. App. 524; Briscoe v. Railroad, 118 Mo. App. 688; Dalton v. Poplar Bluff, 173 Mo. 39; Hugunin v. Hinds, 97 Mo. App. 346; Chenie v. Railroad, 100 Mo. App. 576. The court erred in permitting testimony as to the character and general reputation of the Modern Horse Shoe Club. Underhill, Crim. Evid., sec. 475; Wharton, Crim. Evid., sec. 260; State v. Mosby, 53 Mo. App. 571. (4) The verdict is indefinite and uncertain and consequently void. State v. Burke, 151 Mo. 146; State v. Pierce, 136 Mo. 34; State v. Rowe, 142 Mo. 442; 3 Graham & Waterman, New Trials, p. 1378; State v. DeWitt, 186 Mo. 67; State v. Cronin, 189 Mo. 671; State v. McGee, 181 Mo. 312; State v. Modlin, 197 Mo. 376; State v. Jones, 114 Mo. App. 343; State v. Grossmann, 214 Mo. 233; State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401; State v. Hudson, 137 Mo. 618.

Thos. B. Harvey also for appellant.

(1) The indictment is indefinite and uncertain. It charges that the appellant did set up and keep "one crap table, commonly so-called, and one poker table, commonly so-called, upon which dice and cards were used," etc. The most natural construction of this language is that both dice and cards were used in playing the game of chance for which the crap table was devised, and also in playing the game of chance for which the poker table was devised. Yet, when it came to a trial of the charge, the State's expert witnesses testified that only dice were used on the crap table, and only cards on the poker table. Therefore, the evidence did not sustain the charge, and the appellant's demurrer should have been sustained. Should it be

State v. Jackson.

held that the effect of the language is to charge that dice were used on one table and cards on the other, then can it possibly be claimed that the appellant was advised by the indictment on which of the two gaming tables dice are used, and on which cards are used? Was there ever a clearer violation of the constitutional guaranty that the defendant shall be informed of the "nature and cause of the accusation;" and can it be seriously contended that this indictment does not do flagrant violence to the fundamental rule of criminal pleading that in all prosecutions for felonies, everything constituting the offense must be pleaded with certainty and clearness, and nothing left. to be implied? From the infancy of this court this cardinal rule has been recognized and enforced. State v. Hardwick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Rector, 126 Mo. 328; State v. Evans, 128 Mo. 406. And the cases of State v. Derossett, 19 Mo. 383, and State v. Reakey, 62 Mo. 40, announcing that, notwithstanding the Statute of Jeofails, a clear, substantive charge is as necessary now as it ever was, have been consistently followed by this court. (2) The indictment is duplicitous-it charges two distinct felonies in one count. A timely motion to quash was interposed, both on the ground of uncertainty and because of duplicity, was overruled and exception duly saved. Each gambling table constituted a separate felony. State v. Montgomery, 109 Mo. 645; State v. Foncher, 71 Mo. 460; State v. Burke, 151 Mo. 139. If an indictment charges more than one felony in a single count, a motion to quash should be sustained. State v. Fox, 148 Mo. 524; 22 Cyc. 376A; State v. Carragin, 210 Mo. 351.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The information is valid, sufficient and charges the offense in the language of the statute.