State v. Brooks

67 S.W. 942, 94 Mo. App. 57, 1902 Mo. App. LEXIS 527

• Court: Missouri Court of Appeals
• Decided: April 15, 1902
• Status: Published

Opinion

GOODE, J.

The appellant was indicted fpr gambling, by taking part in a game of poker played for money, to-wit, twenty-five cents.

-No briefs have been filed by either side, but we have attentively read the record, as the law requires us to do in such eases, and are of the opinion that the judgment must be reversed for lack of evidence to support it.

Only one witness was introduced, who testified that he saw the appellant, on the date laid in the indictment, engaged in a game of cards for checks — poker checks. The attempt was -made to prove by this witness that the checks represented money and he said over and over again that he supposed they represented money for they usually did, but he did not see any money, did not buy any checks, nor did he see any cashed. Finally, in answer to a question asked by the prosecuting attorney, he said he knew they represented some kind of money, and this much having been extracted from him he was turned over to the counsel for defendant for cross-examination and thereupon testified as follows:

“Q. 1 will ask you to state to the jury when this took place, now, as near as you can state it ?

“A. I couldn’t say, Mr. Wear; I would say within the last six months.

‘Q. You couldn’t make it more definite? Was it this year ?

“A. I couldn’t make it this year, I would make it within six months.

“Q. You don’t know that these particular checks that you were using on this occasion represented anything at all ?

“A. It is customary that checks represent money.

“Q. You don’t know that; you didn’t cash any checks out yourself?

“A. No, sir.

“Q. And you didn’t buy any at that time ?

“A. No, sir.

“Q. And you didn’t see anybody cash any out?

“A. No, sir.

“Q. And you didn’t see anybody buy any?

“A. No, sir.

“Q. So you don’t know as a matter of fact that they did at that time represent anything ?

“A. I couldn’t say that they represented money, but that is customary.”

This is all the evidence in the case and it is perfectly manifest the witness was ignorant of whether the game was for money or not and that there was not a syllable of testimony which proved or tended to prove it was. Possibly the defendant was gambling, but the fact was not shown, and a conviction on such evidence must be set aside. The judgment is, therefore, reversed.

All concur.