State v. Kyle

10 Mo. 389

• Court: Supreme Court of Missouri
• Decided: January 15, 1847
• Status: Published

Opinion

McBride, J.,

delivered the opinion of the Court.

At the October Term, 1845, of the Chariton Circuit Court, Samuel B. Kyle was indicted for gaming. The Court, on the montion of the defendant, quashed the indictment, and the State thereupon prosecuted her writ of error to this Court, and now assigns for error the quashing of the indictment.

The indictment charges that the defendant££ did on, &c., at the County aforesaid, bet property, to-wit: &c., upon a certain gaming device, then and there adapted, devised and designed for the purpose of playing a game of chance for money and property; that is to say upon a gaming device commonly called cards, against the peace, &c.”

•The reason on which the Circuit Court was asked to quash the indictment as- set forth in the motion is, that it is not alleged where the gambling device was played.

The indictment charges the defendant with betting, which is an offence under our statute, as well as playing for money or property, and it charges very distinctly that the betting took place in Chariton County. Here, then, the gist of the offence is the betting, and it is immaterial where the playing took' place. As if the defendant should know that a game of cards, or any other prohibited game, wag to be played in St. Louis at a certain ,time, and was to make a wager that the one or other of the players would win, or that the game would terminate in a particular manner — here would be a violation of the statute, committed in Chariton County, whilst the game would be played in St. Louis. The better residing in Chariton and making the bet there would have to be indicted in that CoUnty, whilst the players would be subject to indictment in St. Louis.

The Circuit Attorney insists that if it be necessary to allege time and place where the playing occurred, it is sufficiently laid in the indictment. It is uncertain and perhaps therefore bad, whether the words then and there, immediately preceding the words adapted, devised and designed, were intended to apply to the use of the gaming device, or its adaptation to such a purpose.

For the foregoing reasons we are of opinion that the Court committed ■error in quashing the indictment; its judgment is therefore reversed, and the cause remanded for further proceedings in that Court.