State v. Kellar

53 Mo. App. 32, 1893 Mo. App. LEXIS 9

• Court: Missouri Court of Appeals
• Decided: January 31, 1893
• Status: Published

Opinions

Bond, J.

— The appellant was indicted and convicted of card playing on Sunday, under the provisions of section 3854, Revised Statutes, 1889. The indictment charged the appellant with unlawfully playing cards with “Lark Gordon, R. Steinhoúser and R. Birkenkouer on .the first day of the week commonly called Sunday.”

The state introduced one witness on the trial, who testified as follows: “I saw the defendant [appellant] playing cards on Sunday at the time specified in the indictment in Howell county, Missouri. He was playing with Bob Lowery, Lark Gordon and Steinhouser. These were the only parties in the game.”

The defendant then prayed the court to instruct the jury as follows: “The court instructs the jury that, unless they believe from the evidence that the defendant played cards as charged in the indictment, and with the parties charged in the indictment, then the jury will find the defendant not guilty.” This instruction the court refused, to which ruling the defendant at the time excepted.

The court then gave the following instruction on the part of the state: “The court instructs the jury, if you believe beyond a reasonable doubt that the defendant, in Howell county, Missouri, at any time within one year before the thirtieth day of April, 1891, did then and there play at a game of cards with Lark G-ordon, R. Steinhouser, R. Birkenhouer, or with any one or more of said persons, on the first day of the week commonly called Sunday, you should find him guilty and assess his punishment,” etc. To the giving of this instruction the defendant objected and excepted at the time.

The point, relied on to sustain the instruction requested by appellant and declined by the court, and alleged as error in the instruction given by the court on behalf of the state, was that there was a variance shown in the proof between the names and persons engaged in the card playing and the names and persons charged in the indictment, in this, that “Bob Lowery” was a party to the game, instead of “R. Birkenhouer.” As to all the other parties to the game, the proof corresponded exactly with the statement made in the indictment, and it was clear that the game was played as charged in the indictment.

By the terms of section 4114, Revised Statutes, 1889, it is provided: “Whenever, on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, * * * of any person whomsoever therein named or described, *' * * such variance shall not be deemed grounds for an acquittal of defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and’ prejudicial to the defense of the defendant.” This statute has received construction in a late case by the supreme court (State v. Nelson, 101 Mo. 477, 482), wherein the question involved was a variance between the ownership ' 'both of the dwelling-house and of the property stolen,” as stated in the indictment and shown in the proof. It was conceded in that opinion that such a variance would have been fatal at common law, but it was held to have been cured by another clause of the statute above quoted, and, in speaking of the remedial force of this statute, it was said: "Under this statute it has been held on indictments for murder, rape and larceny, that a variance in the Christian name or surname of the person killed, assaulted or the owner of the property sto]en, would not work an acquittal of defendant, unless the trial judge found that the variance was material and prejudicial to the defense,” citing State v. Sharp, 71 Mo. 218; State v. Wammack, 70 Mo. 410; State v. Smith, 80 Mo. 516; State v. Barker, 64 Mo. 282; State v. Sneed, 91 Mo. 552.

In the case at bar the fact, that there was a variance between the indictment and the evidence as to the "name” of only one of the four players, is not material to the proven fact that the game itself was played, nor did it prejudice defendant in any defense showing he was not a party to the unlawful act. The trial court did not find as it might, if the fact had warranted it, that the variance affected the merits of the ease or prejudiced the defendant, but on the contrary instructed the jury that, if they believed the defendant and "any one or more” of said persons were playing cards as charged, they should fihd him guilty.

The judgment in this case is affirmed.

All the judges concur in the result.