In Division Two.
BURGESS, J.
In June, 1892, the defendant was convicted in the circuit court of Audrain county and his punishment fixed at five years ’ imprisonment in the penitentiary, under an information lodged by the prosecuting attorney with the clerk of said court, charging that he did, at said county, unlawfully and feloniously deal, play and practice the confidence game or swindle known as “three-card monte;” and then and there and thereby unlawfully and feloniously did attempt to obtain from B. O. Sims, a large sum of money, to-wit, five thousand dollars, lawful money of the United States of America, of the value of five thousand dollars, against the peace and dignity of the State. Defendant appeals.
It appears from the record that in the forenoon of the eighth day of May, 1902, defendant went to the home of one B. O. Sims, a farmer living about six miles northwest of Mexico in Audrain county. He was in a buggy and pretended to Sims to be a banker from Pulton, out on a collecting trip. Pie stated to Sims that his name was Harris and that a widow lady by the name of Green at Pulton had asked him to look for a good farm which would be desirable for her to buy for her two sons; that he had been referred to the Sims farm. He was told by Mr. Sims that his farm had been offered for sale. Defendant then asked Sims to get in the buggy and go with him that he might look at it. They got in the buggy and started in the same direction from which defendant had come. They had gone but a short distance when they met an elderly gentleman carrying a satchel in his hand, walking down the road. This gen[585]*585tleman proved afterwards to be a man by tbe name of Hill, a friend to the defendant and a stranger in that locality. He inquired tbe way to tbe railroad. Sims told bim it was about' three miles tbe other way. Hill says,4 4 These Yanks around here told me it was tbe other way.” Defendant asked bim what be was. Hill said be was from Texas and bis name was Thompson; that bis father bad died and left bim a large cattle ranch in Texas which be bad sold and that be bad plenty of money; that after be bad sold tbe ranch be bad come to that locality to visit a sister, but bad learned that she was dead and her husband bad moved to Oklahoma; that be bad just been to St. Louis, where be got in with some fellows who played a game with bim and be lost about three hundred dollars. He said be bad considerable money left and exhibited some $1,000 packages and, some $5,000. He then proceeded to demonstrate bow tbe game was placed. After spreading tbe laprobe over defendant’s and Sim’s knees, be took out three cards. He threw them with face down and asked if they could pick up tbe card with tbe picture of a man on it. Defendant tried bis band a time or two as did also Sims. Hill then said be would give five dollars if they could pick up tbe right card again. Defendant tried and won. Hill said Sims must try before be paid any money. Sims turned tbe right card and be and defendant were each banded five dollars by Hill. Hill then offered to bet five thousand dollars against each man that they could not pick up tbe picture card again. Sims said be bad no money to pay if be lost. Defendant says, 44 Yes, he’s all right, be owns all this land around here;” said be 44bad plenty of money.” Tbe game was again played and while defendant told Sims to pick up tbe wrong card be did not do so and both defendant and Sims won. Hill paid them each tbe five thousand dollars. • Hill wanted to bet again, but said be must have more money. Defendant and Sims put their money in a box which defendant bad in tbe buggy and started off, defendant tell[586]*586ing Hill they would go get some more money and return for another game. Hill asked defendant what assurance he had that they would return. Defendant handed Hill the key to his box in which the ten thousand dollars was contained and told him to keep it till they returned.
Defendant and Sims started off in the buggy. When they came to a cross-road leading to Mexico, defendant turned him team that way. Sims asked him where he was going. He said, “to Fulton to get some money to play that old fellow, ’ ’ at the same time asking Sims to do the same thing. Sims told him he did not care to play at the game and for him to return the money which he had won to Hill. Defendant then said if he (Sims) wouldn’t play the game, he would not either. They then turned back and drove up to where Hill was, when defendant took the money from the box and returned it to him. Hill then started on. Defendant and Sims drove to the cross or turn in the road where Sims got out of the buggy. Defendant drove on down- the road to where there was a horse and buggy standing hitched to the fence. Defendant stopped and talked with Hill a few minutes and when he started on Hill untied the horse, got in the buggy and the two men drove off together.
Both Hill and the defendant were seen in that neighborhood by several persons that day. They were arrested at a railroad station about four miles from Mexico in the afternoon of the same day, Sims having gone to Mexico and informed the officers of his experience with them. The defendant and Hill had been seen together a short while before their arrest. Hill was arrested first and when the officers began to look for defendant they found him along the side of a freight train that had just pulled in at the station. He told the officer that he was shipping some hogs, at the same time trying to conceal his identity from the officers.
Several hundred dollars were found on the person of Hill but no money of any consequence on defendant. [587]*587They were taken, to Mexico where Hill was discharged and defendant held under information. Defendant was identified by Sims as being the man who came to his house on the morning of May 8, representing himself to be a banker by the name of Harris from Fulton.
The evidence shows the game of “three-card monte” to have been played but no money was lost by witness Sims.
The defendant offered no evidence in his own behalf, but asked the court to instruct the jury to return a verdict of not guilty on the case as made out by the State. This the court refused to do.
The court of its own motion gave the following instructions to the jury and to the giving of the said instructions defendant then and there excepted and saved his exceptions at the time:
“If the jury find from the evidence in this case that at the county of Audrain and State of Missouri, on or about the eighth day of May, 1902, one calling himself Thompson, did deal, play or practice the confidence game or swindle known as ‘three-card monte,’ and if the jury further find from the evidence that the defendant was present intentionally aiding, assisting, encouraging and abetting the said Thompson in the dealing, playing or practicing of the said confidence game or swindle known as ‘three-card monte,’ then they will find him guilty under the first count of the information and assess his punishment at a fine not to exceed five thousand dollars or by confinement in the penitentiary not less than two or more than five years.
“You are further instructed that the law presumes the defendant innocent of the offenses here charged and that the burden then rests on the State to show to the jury from the evidence in the case beyond a reasonable doubt his guilt as charged in the information.
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In Division Two.
BURGESS, J.
In June, 1892, the defendant was convicted in the circuit court of Audrain county and his punishment fixed at five years ’ imprisonment in the penitentiary, under an information lodged by the prosecuting attorney with the clerk of said court, charging that he did, at said county, unlawfully and feloniously deal, play and practice the confidence game or swindle known as “three-card monte;” and then and there and thereby unlawfully and feloniously did attempt to obtain from B. O. Sims, a large sum of money, to-wit, five thousand dollars, lawful money of the United States of America, of the value of five thousand dollars, against the peace and dignity of the State. Defendant appeals.
It appears from the record that in the forenoon of the eighth day of May, 1902, defendant went to the home of one B. O. Sims, a farmer living about six miles northwest of Mexico in Audrain county. He was in a buggy and pretended to Sims to be a banker from Pulton, out on a collecting trip. Pie stated to Sims that his name was Harris and that a widow lady by the name of Green at Pulton had asked him to look for a good farm which would be desirable for her to buy for her two sons; that he had been referred to the Sims farm. He was told by Mr. Sims that his farm had been offered for sale. Defendant then asked Sims to get in the buggy and go with him that he might look at it. They got in the buggy and started in the same direction from which defendant had come. They had gone but a short distance when they met an elderly gentleman carrying a satchel in his hand, walking down the road. This gen[585]*585tleman proved afterwards to be a man by tbe name of Hill, a friend to the defendant and a stranger in that locality. He inquired tbe way to tbe railroad. Sims told bim it was about' three miles tbe other way. Hill says,4 4 These Yanks around here told me it was tbe other way.” Defendant asked bim what be was. Hill said be was from Texas and bis name was Thompson; that bis father bad died and left bim a large cattle ranch in Texas which be bad sold and that be bad plenty of money; that after be bad sold tbe ranch be bad come to that locality to visit a sister, but bad learned that she was dead and her husband bad moved to Oklahoma; that be bad just been to St. Louis, where be got in with some fellows who played a game with bim and be lost about three hundred dollars. He said be bad considerable money left and exhibited some $1,000 packages and, some $5,000. He then proceeded to demonstrate bow tbe game was placed. After spreading tbe laprobe over defendant’s and Sim’s knees, be took out three cards. He threw them with face down and asked if they could pick up tbe card with tbe picture of a man on it. Defendant tried bis band a time or two as did also Sims. Hill then said be would give five dollars if they could pick up tbe right card again. Defendant tried and won. Hill said Sims must try before be paid any money. Sims turned tbe right card and be and defendant were each banded five dollars by Hill. Hill then offered to bet five thousand dollars against each man that they could not pick up tbe picture card again. Sims said be bad no money to pay if be lost. Defendant says, 44 Yes, he’s all right, be owns all this land around here;” said be 44bad plenty of money.” Tbe game was again played and while defendant told Sims to pick up tbe wrong card be did not do so and both defendant and Sims won. Hill paid them each tbe five thousand dollars. • Hill wanted to bet again, but said be must have more money. Defendant and Sims put their money in a box which defendant bad in tbe buggy and started off, defendant tell[586]*586ing Hill they would go get some more money and return for another game. Hill asked defendant what assurance he had that they would return. Defendant handed Hill the key to his box in which the ten thousand dollars was contained and told him to keep it till they returned.
Defendant and Sims started off in the buggy. When they came to a cross-road leading to Mexico, defendant turned him team that way. Sims asked him where he was going. He said, “to Fulton to get some money to play that old fellow, ’ ’ at the same time asking Sims to do the same thing. Sims told him he did not care to play at the game and for him to return the money which he had won to Hill. Defendant then said if he (Sims) wouldn’t play the game, he would not either. They then turned back and drove up to where Hill was, when defendant took the money from the box and returned it to him. Hill then started on. Defendant and Sims drove to the cross or turn in the road where Sims got out of the buggy. Defendant drove on down- the road to where there was a horse and buggy standing hitched to the fence. Defendant stopped and talked with Hill a few minutes and when he started on Hill untied the horse, got in the buggy and the two men drove off together.
Both Hill and the defendant were seen in that neighborhood by several persons that day. They were arrested at a railroad station about four miles from Mexico in the afternoon of the same day, Sims having gone to Mexico and informed the officers of his experience with them. The defendant and Hill had been seen together a short while before their arrest. Hill was arrested first and when the officers began to look for defendant they found him along the side of a freight train that had just pulled in at the station. He told the officer that he was shipping some hogs, at the same time trying to conceal his identity from the officers.
Several hundred dollars were found on the person of Hill but no money of any consequence on defendant. [587]*587They were taken, to Mexico where Hill was discharged and defendant held under information. Defendant was identified by Sims as being the man who came to his house on the morning of May 8, representing himself to be a banker by the name of Harris from Fulton.
The evidence shows the game of “three-card monte” to have been played but no money was lost by witness Sims.
The defendant offered no evidence in his own behalf, but asked the court to instruct the jury to return a verdict of not guilty on the case as made out by the State. This the court refused to do.
The court of its own motion gave the following instructions to the jury and to the giving of the said instructions defendant then and there excepted and saved his exceptions at the time:
“If the jury find from the evidence in this case that at the county of Audrain and State of Missouri, on or about the eighth day of May, 1902, one calling himself Thompson, did deal, play or practice the confidence game or swindle known as ‘three-card monte,’ and if the jury further find from the evidence that the defendant was present intentionally aiding, assisting, encouraging and abetting the said Thompson in the dealing, playing or practicing of the said confidence game or swindle known as ‘three-card monte,’ then they will find him guilty under the first count of the information and assess his punishment at a fine not to exceed five thousand dollars or by confinement in the penitentiary not less than two or more than five years.
“You are further instructed that the law presumes the defendant innocent of the offenses here charged and that the burden then rests on the State to show to the jury from the evidence in the case beyond a reasonable doubt his guilt as charged in the information.
“Now, if you have a reasonable doubt of the guilt of the defendant, you should give him the benefit of such doubt and acquit him; but a doubt sufficient to authorize [588]*588an acquittal on that ground ought to he a substantial doubt touching his guilt and not a mere possibility of his innocence.
“You are further instructed that you are the sole judges of the weight of the evidence and the credibility of the witnesses, and in passing upon such weight and credibility you may take into consideration the demeanor of the witness on the stand, his or her interest, if any, in the result of the suit, his or her prejudice or bias, if any, either for or against the accused, the opportunities of the witness to know the facts to which they testify, and disposition to relate them truly and correctly, or otherwise, as well as all the facts and circumstances given in evidence in the case.
“By ‘three-card monte,’ as used in the foregoing instruction, is meant a sleight-of-hand game or trick played with three cards one of which is usually a court card; the performer throws the cards face down upon a table or cloth in such a manner as to deceive the eye of the onlooker, who is induced to bet that he can pick out the court card.”
The count of the information under which defendant was convicted reads as follows:
“H. L. Bickley, prosecuting attorney within and for the county of Audrain and State of Missouri, under his oath of office, upon his knowledge, information and belief, informs the court that John Edgen, in this State, to-wit, in the State of Missouri and in the county of Au-drain, on the eighth day of May, 1902, unlawfully and feloniously did deal, play and practice the confidence game or swindle known as ‘three-card monte;’ and then and there and thereby unlawfully and feloniously did attempt to obtain from B. O. Sims a large sum of money, to-wit, five thousand dollars, lawful money of the United States of America, of the value of five thousand dollars, against the peace and dignity of the State.”
The sufficiency of this count to state a criminal charge against defendant is challenged, because of the [589]*589unconstitutionality of section 2216, Revised Statutes 1899, upon which it is based.
This section is as follows:
“Whoever shall, in this State, deal, play or practice, or be in any manner accessory to the dealing, playing or practicing of the confidence game or swindle known as ‘three-card monte,’ or of any such game, play or practice shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by a fine not to exceed five thousand dollars, or by confinement in the penitentiary not less than two nor more than five years.”
By the terms of the statute it is made an offense for any person in this State to deal, play or practice, or be in any manner accessory to the dealing, playing or practicing, of the confidence game or swindle known as ‘ ‘ three-card monte. ” In so far as the playing and practicing the game is concerned, the information is in the exact language of the statute. “Three-card monte” is said to be a “sleight-of-hand game or trick played with three cards, one of which is usually a court card. The performer throws the cards face down upon a table in such a manner as to deceive the eye of the onlooker who is induced to bet that he can pick out the court card.” [1147, Standard Dictionary.]
While the cards are manipulated by one person alone, who is commonly called "the dealer, the game is generally known and understood to be a confidence game, and is also declared by the statute to be a confidence game or swindle, known as “three-card monte.” There can, therefore, be no question as to the character of the game.
It is well settled that when an indictment or information describes the whole offense, as in the case at bar, and is in the language of the statute, it is sufficient and need not be more specific. [State v. Dewitt, 152 Mo. 76; State v. Krueger, 134 Mo. 262; State v. Wilkerson, 170 Mo. 184, and authorities cited.] It was therefore entirely unnecessary that the information aver the man[590]*590ner in which the game was played or who participated therein, or that money or property was bet or won or lost thereon. The statute is leveled at playing and practicing the game, and the guilt of any person violating it in no way depends upon whether or not money or property was bet upon it. [State v. Torphy, 66 Mo. App. 434.]
The case at bar differs from that class of cases relied npon by defendant based upon some confidence game not fully set out in the indictment and where no descriptive words are used showing what was meant other than some confidence game, trick or deception, in that in the case in hand the statute declaf es and the information alleges “three-card monte” to be a confidence game, and that defendant did deal, play and practice it.
There is, therefore, no merit in the contention that the allegations in the information do not fully inform the defendant of the nature of the offense charged against him.
While the evidence shows that the defendant did not himself deal, play or practice the confidence game or manipulate the cards, it shows beyond any question that he induced Sims to bet upon the game for the purpose of swindling him ont of his money and was clearly accessory before the fact and may be prosecuted under the statute just as if he had actually done so. [R. S. 1899, sec. 2364.J
It is said for defendant that the instruction in the nature of a demurrer to the evidence should have been given.
Defendant introduced no evidence, and that introduced by the State was all one way, and conclusively showed that a scheme was planned .and attempted to be carried out by defendant and one Hill acting in concert with him to swindle Sims out of his money by means of a trick or confidence game called “three-card monte.”
It is claimed by defendant that the court improp[591]*591erly defined the term “three-card monte.” This definition is in accord with that heretofore stated, and given by the Standard Dictionary. The contention is therefore without merit.
There was no substantial variance between the averments in the information and the evidence. •
Finding no reversible error in the record, we affirm the judgment.
All concur, except Fox, J., who dissents.
In Banc.
The judgment herein is affirmed in accordance with the foregoing opinion of Burgess, J., in Division Number Two; Brace, Gantt and Valliant, JJ., concurring; Robinson, C. J., Marshall, and Fox, JJ., dissenting.