Opinion
No. 7197.
October 23, 1953.
APPEAL FROM THE CIRCUIT COURT, PULASKI COUNTY, E. W. ALLISON, J.
Breuer Northern, Rolla, T. A. Shockley, Waynesville, for appellant.
Wayne Waldo, Pros. Atty., Waynesville, Zane White, Roy V. Selleck, Rolla, for respondent.
This is an appeal from a conviction for permitting a gambling device to be used on premises alleged to have been in the possession and under the control of defendant. The premises defendant was alleged to "occupy and use and have possession and control of" were specifically described in the information as
"that part of the Northwest Quarter of Section 28, Township 36, North, Range 11 West of the Fifth Principal Meridian, lying North of U.S. Highway No. 66 described as follows: Commencing at the Southeast corner of the Northeast Quarter of the Northwest Quarter, said Section, Township and Range; thence run West a distance of 1295 feet; thence South a distance of 193 feet more or less to an iron pin marking the North boundary line of U.S. No. 66 as now established, thence West (along right-of-way) of said Highway to the Southeast corner of pavement in front of Filling Station for a point of beginning; Thence West along said right-of-way a distance of 100 feet, more or less to the Southwest corner of said pavement; thence North at right angles with said highway a distance of 210 feet; thence East 100 feet, more or less to a point North of the beginning, including all of the paved portion of said lot in front of the Cafe and Filling Station Buildings and to the West end of the paved portion of said Filling Station, * * *."
At the close of the State's evidence and at the close of all the evidence the defendant moved for a directed verdict which the court refused. In the motion for new trial, the court's refusal to give these directed verdicts was alleged to be error, "for the reason that no evidence was introduced showing the defendant guilty of the violation of any law under the charge and information filed against him, and for which he was put on trial."
The evidence shows that certain truck drivers were shooting craps on a concrete slab near some tourist cottages, a cleaning establishment and filling station known as "* * * the Wagon Wheel, which is located out here on 66, a few miles east of Waynesville." The location was further described as "at the junction of 66 and 17, somewheres along in there." There is no evidence in the record that the "Wagon Wheel" and adjacent premises were located at, on or near the plot of ground described in the information, nor is it alleged in the information that they were so located.
Section 563.420, V.A.M.S. makes it a misdemeanor for a person to permit a gambling device to be set up or used for the purpose of gaming on "premises to him belonging or by him occupied, or which he hath at the time the possession or control, * * *."
The information specifically describes the premises which were alleged to have been under the control of defendant and where the dice were said to have been used. The evidence shows that there was crap shooting on a concrete slab near the "Wagon Wheel" but the burden was upon the State to show that the premises described in the information were occupied by the defendant or under his control. The defendant was entitled to know the nature and cause of the accusation against him and the State must prove the crime charged. It cannot charge him with one crime and sustain a conviction by proving another.
When the information specifically describes the premises upon which the violation was alleged to have taken place, the State is bound by that description.
In State v. Malloch, 269 Mo. 235, 190 S.W. 266, 267, the defendant was charged with keeping a bawdy house "at the northwest corner of College and Market streets, in the city of Springfield," and displaying thereon the sign of an honest occupation to-wit, "Palace Hotel". The main part of the hotel was located at the place described. Across the street from it was what was called the "Annex" in the second story of a building connected with the main hotel by an overhead passage-way. The State proved by an officer that two people were arrested and taken out of the Annex for lewd conduct. To that evidence defendant objected on the ground that the Annex was not covered by the indictment. Upon an appeal, the Supreme Court held that the indictment must designate the house upon which the sign of an honest occupation was displayed. The indictment did so, but alleged its location to be at the northwest corner of College and Market Streets. The case was reversed by the Supreme Court where it was said:
"That annex was across the street from the building described in the indictment, and was not described in the indictment as being used in connection with the main hotel. We do not here decide that the indictment could not have been so drawn as to cover both the main hotel and the annex as being used in connection with each other as one establishment. That was not done. The evidence was admitted broad enough to cover both buildings, while the charge covers but one. Such evidence was improperly admitted."
A case squarely in point is People v. Lewis, 140 Ill.App. 493, where the indictment charged the keeping of a room for gambling purposes at 239 E. 22nd Street in Chicago. The evidence showed the keeping of a room for gambling at the corner of Dearborn and 22nd Street in the same city. There was no evidence that the building at 239 E. 22nd Street was located at the corner of Dearborn and 22nd Streets. The court held that failure to prove they were the same place was fatal to the State's case and the cause was reversed and remanded. The court said: "It is not a mere variance, but a failure to prove an averment, proof of which is essential to a valid conviction."
In Dailey v. State, 27 Tex.App. 569, 11 S.W. 636, the indictment charged defendant with playing cards in a public place, towit, at Starkey's Gin. The evidence showed that he played in a fence corner and in a private room near the Gin. The judgment was reversed.
In Johnson v. State, 74 Ala. 537, the defendant was indicted for suffering a game of cards to be played on his boat while navigating the Mobile River. The evidence showed that they were navigating in Mobile Bay. The cause was reversed.
The court in Instructions No. C-2 and C-3 told the jury they might convict the defendant if, among other things, they found that he did then and there occupy and have the possession and control of the premises referred to in the "evidence". We do not say that the giving of these instructions would have been error if the information had alleged the premises to have been the Wagon Wheel and land adjacent, or if the evidence had referred to the premises described in the information. But under the state of the record, as we find it, the court, in effect, instructed the jury that they might convict the defendant even though he did not have possession or control of the premises described in the information, if he did have control of the premises testified about. The very gist of the offense is control and possession of the premises described in the charge. See State v. McLaughlin, 160 Mo. 33, 60 S.W. 1075.
There was considerable evidence introduced about other and disconnected violations of the law and immoral actions near the Wagon Wheel and it is strenuously urged that this testimony was prejudicial to defendant and was error. The defendant was charged with permitting the use of a gambling device on premises under his possession and control, and the evidence, if the case is tried again, should be confined to that issue.
This case originated in the magistrate's court and was there tried without a jury. There were at that time two defendants, one was acquitted and the defendant, here, convicted and he appealed. In rebuttal, the State was permitted to use as a witness R. A. Bell, the magistrate before whom this case had been previously tried and his testimony showed the other defendant was acquitted by him. He said: "They were both charged with the offense; the other man was released. If he had been there he would have been held too." He was permitted to give his conclusions as to why the other defendant was acquitted. The admission of this testimony was error but there is some question as to whether it was properly saved. However it should not be permitted on a re-trial.
It does not appear that the State cannot, upon a re-trial, make a submissible case, so this cause is reversed and remanded.
BLAIR and McDOWELL, JJ., concur.