Kansas City v. Caresio

447 S.W.2d 535, 1969 Mo. LEXIS 682
CourtSupreme Court of Missouri
DecidedNovember 10, 1969
DocketNo. 54007
StatusPublished
Cited by4 cases

This text of 447 S.W.2d 535 (Kansas City v. Caresio) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kansas City v. Caresio, 447 S.W.2d 535, 1969 Mo. LEXIS 682 (Mo. 1969).

Opinion

FINCH, Judge.

The two defendants herein, following an appeal from the Municipal Court, were convicted in a jury-waived trial in the Circuit Court of participating in a game of chance, to wit, a dice game in which money was involved, in violation of an ordinance of the City of Kansas City. Both were sentenced to terms of sixty days in jail. Defendants were separately charged and convicted, but in the Kansas City Court of Appeals the cases were consolidated. The Court of Appeals reversed both convictions on the basis that the informations were insufficient to charge an offense. On application of plaintiff, Kansas City, we ordered the consolidated case transferred, and we now decide it as an original appeal. Art. V, § 10, Constitution of Missouri, 1945, V. A.M.S. We affirm.

This case, recently reassigned to the writer, involves two questions, viz: (1) The adequacy of the informations to charge an offense under the Kansas City ordinance, and (2) the sufficiency of the evidence to sustain the convictions.

On October 30, 1966, the two defendants and six other persons were arrested at 1048 East 5th Street, in Kansas City, Missouri, [536]*536and subsequently were charged in separate informations with violations of Ordinances 23.030 and 23.040, Revised Ordinances of 1956, Kansas City, Missouri, in that they participated in a game of chance played for money, to wit, a dice game, and knowingly attended a room wherein a gaming table was in use upon which a dice game was played for money. The Circuit Court acquitted the other six defendants but convicted the two defendants herein under the informations charging participation in a dice game played for money. The court dismissed the charge against these defendants of attending a room where such game was played on the basis that it was a lesser included offense in the charge of participating in such game and that defendants should not be convicted and sentenced on both charges.

Ordinance No. 23.030, under which defendants were convicted, reads as follows:

“No person shall bet, wager, win or lose money or property, or things representing money or property, upon the result of any game or event whatsoever; nor shall any person by his presence, or otherwise aid, abet, assist, encourage, countenance or participate in any game of chance played for money or property, or things representing money or property.”

The information on which defendant Caresio was convicted was as follows:

“On information, the below named, Assistant City Counselor within and for Kansas City, County of Jackson, and State of Missouri, complains and informs the Court that on or about the 30th day of October, A.D.1966, within the corporate limits of Kansas City, and in and upon 1048 East 5th Street one John Caresio did then and there unlawfully participate in a game of chance which was played for money, to wit: a dice game.
“All in violation of Section 23.030 & 1.-100 of the Revised Ordinances of 1956 of Kansas City, Missouri, as amended.”

The information against defendant Maroon was identical except for a substitution of his name for that of John Caresio.

The sufficiency of these informations is established by the recent en banc decision of this court in Kansas City v. Stricklin, Mo., 428 S.W.2d 721. We should point out that Stricklin was decided after the decision herein by the Kansas City Court of Appeals.

The requirements of an information in a proceeding under a municipal ordinance are discussed extensively in Stricklin and need not be reiterated here. In summary, the court in that case said, 1. c. 725: “Since a proceeding for violation of a city ordinance is in the nature of a civil action, the same strictness in stating an offense is not required as in a criminal prosecution. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450, 453 [2]; University City v. Redwine, Mo.App., 376 S.W.2d 609, 613 [8]; Kansas City v. Martin, Mo.App., 369 S.W.2d 602, 607 [15]. An information or complaint charging the violation of a city ordinance is ordinarily sufficient where it describes the act complained of in the language of the ordinance. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450, 453 [3] ; University City v. Redwine, Mo.App., 376 S.W.2d 609, 613 [11]; Kansas City v. Martin, Mo.App., 369 S.W.2d 602, 606 [4].”

In Stricklin the pertinent portion of the information held to be sufficient was as follows: “ * * * then and there unlawfully did have in his possession or did have in a room, house, building and place under his control and management, a gaming table, gambling device, or gambling paraphernalia not capable of lawful use. All in violation of Section 23.050 and 1-11 of Revised Ordinances 1956, of Kansas City, Mo.”

The informations in this case, as did the information in Stricklin, charged defendants in the language of the ordinance. They were charged with unlawfully participating [537]*537in a game of chance played with money, which is language taken from the ordinance. The information further alleged the fact that the game of chance participated in was a dice game.

The opinion in Stricklin points out that defendant therein did not request a bill of particulars, the correct procedure for seeking more definite and detailed information as to the charge. Here the defendants did file such motions hut the court overruled them. However, on appeal defendants do not complain of that action. They assert only the alleged insufficiency of the in-formations to charge any violation of the city ordinance. This, then, is the issue presented.

The informations herein were sufficient to advise the defendants with what they were charged. The word “participate” has a well known meaning. It is defined in Webster’s Third New International Dictionary in this manner: “to take part in something (as an enterprise or activity) usu. in common with others.” The same dictionary defines “game of chance” as “a game (as a dice game) in which chance rather than skill determines the outcome.” The defendants were told by the informa-tions that the game of chance for money in which they took part was one played with dice, and they were told the date on which the offense occurred, and the specific location in Kansas City. These allegations were sufficient to identify the offense for which the defendants were being prosecuted and thereby prevent the possibility of double jeopardy. Kansas City v. Stricklin, supra.

The cases of State v. Wade, 267 Mo. 249, 183 S.W. 598, and State v. Chaney, Mo., 188 S.W.2d 19, cited and relied on by defendants, are not pertinent in this case. Those cases involved prosecutions in the state courts for a felony, rather than proceedings to enforce a municipal ordinance. In addition, the statute in those instances enumerated certain specific gaming devices such as roulette, faro bank, etc., and a crap table was not specifically listed.

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Bluebook (online)
447 S.W.2d 535, 1969 Mo. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-city-v-caresio-mo-1969.