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granted allocution, Thereupon the sentence played or by means of such table or gambling was set aside, allocution granted, and sen- device or on the side or against the keeper tence again pronounced. The defendant filed thereof, shall, on conviction, be adjudged guilty a motion in arrest, which was overruled, and of a felony," etc. an appeal was duly granted. The evidence

In State v. Mathis, 206 Mo. 604, 610, 105 S. is briefly and fairly summarized by the At

W. 604, 605 (121 Am. 'St. Rep. 687), Judge torney General as follows:

Burgess said: "In brief the evidence shows that on the

"In State v. Rosenblatt, 185 Mo. 114, 83 $. night of February 2, 1924, a crap table or W. 975, the accused was indicted under this gambling device was set up and being operated same statute, and convicted of the offense in the northwest corner of the basement of the of setting up and keeping a crap table. The Francis building in Brookfield, Linn county, contention of the defendant was that the inMo.; that a crap game was in progress, in dictment did not charge the 'setting up or which several men were participating, the ap- keeping' any of the tables or gambling devices pellant being one of such men; that the game denounced by the statute; that instead of had been in progress for an hour before the charging the setting up and keeping a roulette raid was made by the officers. The crap table table it charged the setting up and kerping of itself was offered in evidence and contained the a roulette wheel, and did not specify either of usual indentation in and near the middle there the gambling devices specified in said section. of where the banker br keeper of such a table Upon this proposition Gantt, J., speaking for usually sits or stands to conduct the game. the court, said: The evidence shows that the appellant sat on “ 'The statute is broad enough to and does a chair in the indentation at the middle of this include the setting up or keeping “any kind crap table with a pile of money in front of him of gambling table or gambling device adapted, where the banker or keeper of such table usu- devised and designed for the purpose of playally sits. The evidence further shows that the ing the game of chance for money or propappellant had been sitting in this position and erty," and this indictment specifically charges managing the game for an hour before the that the defendant did set up and keep one raid was made.

crap table, commonly so called, upon which “In short, we think the evidence was suffi- dice are used, and one chuok-a-luok table, cient to convince the jury that the appellant commonly so called, upon which are used dice, did on the occasion mentioned set up and keep “which said gaming tables and gambling do a certain gambling device, to wit, a crap table. vices were adapted, devised and designed for upon which dice were thrown and used, and the purpose of playing games of chance for that said gambling table was adapted, devised, money and property," ' and designed for the purpose of playing games of chance for money and property, and that

Again, on page 611 (105 S. W. 606): appellant did then and there entice and permit “Counsel for defendant lay much stress uppersons to bet and play at and upon and by on the fact that the game of poker does not means of said gambling table within the mean- require a table or device of a certain kind, ing of the statute and within the language of and specially adapted, devised, and designed the information."

for the playing of the game of poker alone.

Nor was it necessary that the table should be The raid was made by the sheriff of Linn specially adapted, devised, and designed for county, the marshal of Brookfield, and the purpose of playing poker alone. The statothers, after midnight. There were 25 or 30 ute should not be given any such restricted men in the room; some of them rolling dice meaning. It prohibits the setting up or keepand betting money, or waiting their turns ing any kind of gambling table or gambling to do so.

The defendant sat at the side of device, adapted, devised and designed for the the table in the little cut-out place or inden- purpose of playing any game of chance for

money or property,' and the inducing, enticing, tation, and took the money. The money was or permitting 'any person to bet or play at or piled up on the table in front of him. Wit- upon any such gambling table or gambling de nesses, familiar with the game, testified it vice, or at or upon any game played or by was a crap table; that crap games were be- means of such table or gambling device,' aling played on the table; that money was bet ways putting it in the disjunctive. It makes and lost on the games; and that the defend-game of poker was played was a gambling de

no difference whether the table on which the ant was in charge of the table and the vice or not.

If it was a table, adapted, degambling. The defendant stood on a demur- vised, and designed for the purpose of playrer at the close of the state's case which, he ing any game of chance for money or property, insists, the court erred in overruling.

and the defendant permitted any person to 1. The pertinent part of the statute (sec- bet or play upon such table, he is guilty as tion 3537, R. S. 1919) reads:

charged. That the poker table, so called, was

adapted and designed for the purpose of play"Every person who shall set up or keep any ing games of chance is clearly shown by the table or gaming device

or any kind of fact that games of poker were played thereon, gambling table or gambling device adapted, le- in some of which at least the defendant parvised and designed for the purpose of playing ticipated. any game of chance for money or property

“A further contention is that the game of and shall induce, entice or permit any person poker cannot be played by means of a table to bet or play at or upon any such gaming ta- alone, but that the thing that is adapted, deble or gambling device, or at or upon any game / vised, and designed for the purpose of play:

*

(273 S.W.) ing such game is an ordinary deck of playing ! tions given for the state. Indeed they do cards. The primary object of the statute was not refer in their brief to the instructions to prevent gambling, by prohibiting the setting given or refused. The instructions given up or keeping any kind of table or gambling fairly and impartially submitted the case to device for the purpose of playing any game of the jury. Instructions 1, 3, and 4, asked by chance for money or property, and, although cards or dice may be necessary to be used in the defendant, were covered by those given conjunction with such table or device in order for the state. Instruction 2 was a comment to play such game of chance, it is none the on the evidence, and was properly refused. less a gambling table or device when used in [6] 5. After overruling the motion for new conjunction with cards or dice for the purpose trial, the court pronounced sentence upon the of playing a game of chance for money or prop- defendant and, upon the exception of the deerty."

fendant that allocution had not been granted, [1, 2] The evidence 'was sufficient to take set the sentence aside. Section 4057, R. S.

1919, requires allocution before sentence, but the case to the jury and to authorize a conviction. State v. Solon, 247 Mo. 672, 683, 153

section 4058 reads: S. W. 1023. It was not necessary for the

"If the defendant has been heard on a mostate to show that the defendant was the tion for a new trial, or in arrest of judgment, proprietor of the table, or of the room where and in all cases of misdemeanor, the require

ments of the next preceding section shall be it was kept, or that he played any of the deemed directory, and the omission to comply games, or that he had any financial interest with it shall not invalidate the judgment or or share in the profits of the games. State sentence of the court." State v. Clinkenbeard, V. Chauvin, 231 Mo. 31, 40, 132 S. W. 243, 232 Mo. 539, 543, 134 S. W. 537, 538. Ann. Cas. 1912A, 992. The demurrer to the evidence was properly overruled.

The motion for a new trial is a showing [3] 2. It is insisted that the verdict is of cause why sentence should not be proclearly the result of bias and prejudice and nounced. However, no harm resulted to the

defendant. in total disregard of the instructions. This assignment is without merit. The evidence

The judgment is affirmed. shows the defendant was guilty of a flagrant RAILEY, C., concurs. violation of the statute, behind closed doors, which the officers were compelled to break PER CURIAM. The foregoing opinion of open to effect an entrance. The statute de- | HIGBEE, C., is hereby adopted as the opinnounces the setting up of gambling devices ion of the court. and the inducing or permitting of persons

All concur. to play games of chance thereon for money as a felony; it is a heinous offense against society, punishable by imprisonment from two

ROSENZWEIG v. WELLS. (No. 25447.) to five years in the penitentiary. The assessment of the punishment was the prerogative (Supreme Court of Missouri, Division No. 2. of the jury. In the circumstances of this

April 9, 1925. Motion for Rehearing case no doubt the jury deemed the maximum

Overruled June 5, 1925.) penalty appropriate, not only as a well-de-1. Appeal and

715(2)-Supremo served punishment for the offense, but to Court confined wholly to matters appearing serve as a wholesome warning to other like in record proper and bill of exceptions, exoffenders, In view of this example the set cept those matters of which it may take juting up of gambling devices in Linn county is

dicial notice. not likely to be regarded as a profitable or

In passenger's action for injuries, affidavits alluring venture. The verdict met with the in support of motion to set aside submission approval of the learned trial court and this of case because plaintiff's injuries were largely

feigned, could not be considered by Supreme court has no power or disposit to interfere so long as the defendant had a fair trial|ness of trial court's rulings and sufficiency

Court on appeal, since, in reviewing correctbefore an impartial court and jury.

of evidence, Supreme Court is confined wholly [4] 3. Another assignment of error is that to matters appearing in record proper and the court erred in permitting Ross Diehl, bill of exceptions, unless it be those matters of sheriff of Linn county, to testify as to the which it may take judicial notice. place at the table where he saw bankers of 2. Trial Ow251(1)-Instructions may not be games sit in crap games played in the war. broader than petition. No complaint is made as to the admission of Generally instructions may not be broader evidence in the motion for new trial and than petition. this assignment cannot be considered.

3. Carriers 314(5), 315(1)-Allegations in [5] 4. Finally, it is urged in the motion for

passenger's action for injuries held to state new trial that the court erred in the giving

a cause of action and to let in proof that car and refusal of instructions. Learned coun was stopped in an “unusual” manner. sel, who briefed and argued this case, have In passenger's action for injuries sustained failed to specify any errors in the instruc- l when alighting from a street car, allegations

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error

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that defendant's servants negligently stopped , juries held prejudicial error, in view of R. S. street car "with a sudden and violent jerk" | 1919, § 1513, where there was no evidence held to state a cause of action and to be broad of permanent injuries, and case was close on enough to let in proof that car was stopped in question of happening of an injury to plaintiff an "unusual" manner.

at all and defendant's liability therefor. 4. Carriers en 320 (25)-Whether street car 12. Trial 252 (20)- Instruction on measure

conductor declared that he opened door of of damages should be framed to submit ques. oar too soon held for jury.

tion of permanent injuries only as to such In passenger's action for injuries, sustain

injuries alleged to be permanent. ed when alighting from street car, whether

An instruction on measure of damages defendant's conductor declared, immediately should be framed so as to submit to jury quesafter plaintiff fell, that he opened door of car tion of permanent injuries only as to such intoo soon, held for jury.

juries as are alleged in petition to be perma

nent. 5. Evidence om 123(11)-Conductor's declara

tion that he opened door of car too soon held Appeal from St. Louis Circuit Court; admissible as res gestæ.

Franklin Miller, Judge. In passenger's action for injuries, sustained when alighting from street car, declaration Rolla Wells, receiver of United Railways

Action by Clementine Rosenzweig against of conductor who hurried to plaintiff when she fell, and immediately on reaching her declared Company of St. Louis. Judgment for plainthat he had opened door too soon, was admissi- tiff, and defendant appeals. Reversed and ble as res gestæ.

remanded. 6. Evidence On 123(1), 126(1)-Declaration

Charles W. Bates, T. E. Francis, and Edafter an injury may be shown if spontaneous ward P. Walsh, all of St. Louis, for appellant. and made as part of transaction itself. E. H. Wayman, of St. Louis, for respondIf declaration made after an injury is spon

ent. taneous and made as part of transaction itself, it may be shown, whether made by injured per

DAVID E. BLAIR, J. Action for damages son or by person responsible for such injury, for personal injuries, alleged to have been or even if made by a bystander.

suffered by plaintiff while she was a passen7. Damages Om 143—Plaintiff must allege that ser upon one of defendant's street cars in the

paralysis ensued from blow on head sufficient city of St. Louis. From a judgment for plainto fracture skull in order to recover.

tiff in the sum of $10,000, defendant has ap

pealed. If plaintiff suing for injuries seeks to recover for paralysis caused by a blow on the

While the motion for new trial charged head sufficient to fracture the skull and produc- error in the refusal of the trial court to give ing concussion of the brain, he must allege to the jury a peremptory instruction to find that such injury ensued as result of the blow. for defendant at the conclusion of all the 8. Trial w234(1)–Trial court held to have evidence, no such assignment of error is made properly limited proof of paralysis.

in defendant's brief here. We are satisfied In action for injuries, trial court held to that plaintiff made a case for the jury. This have properly limited proof of paralysis as a

obviates the necessity of making a detailed symptom attendant upon and tending to show statement of the facts, except as such facts fracture of plaintiff's skull.

require statement in connection with our 9. Damages Cm 158(2)—Allegation of "numb. consideration of the assignments of error

made here. ness" of leg held sufficient to let in proof of paralysis of that member.

On November 23, 1921, plaintiff, with her In action for injuries, allegation of numb-husband and young son, lived at what was ness of the leg held sufficient to let in proof of then known as Ednell Hotel, at the southwest paralysis of that member; "numbness” being corner of Delmar boulevard and Kingshighstate of being numb or without feeling; torpor; way in said city. She was a passenger upon paralysis.

an east-bound street car, from which she at[Ed. Note.-For other definitions, see Words tempted to alight in front of said hotel at and Phrases, Numb.]

about 5:30 p. m. of that day. 10. Appeal and error 1068(4)-Erroneous

Plaintiff's evidence tended to show that, instruction on measure of damages not re

as the street car approached Kingshighway, versible error, where not affecting result she left her seat in the car and went to the prejudicially to defendant.

rear platform preparatory to alighting, that An erroneous instruction on measure of the conductor opened the door of the car bedamages could not constitute reversible error, fore the car was brought to a standstill, and where not affecting result prejudicially to de- that said car was stopped with a sudden, viofondant.

lent, and unusual jerk, which threw plaintiff 11. Appeal and error Emo 1066-Instruction au- from the platform down upon the steps, with thorizing jury to allow damages for perma- her feet on the pavement, and injured her. nent injuries held prejudicial error.

Her evidence tended to show that she susIn action for injuries, instruction author- tained severe injuries. Plaintiff did not tesizing jury to allow damages for permanent in- ' tify at the trial, nor was her deposition taken

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) before said trial, because of alleged physical Counsel have not suggested bow the alleged inability on her part to have her testimony newly discovered evidence can avail the detaken.

fendant in this court. It might be unkind to The evidence offered by defendant tended suggest that the chief purpose of the motion, to show that the street car was brought to a with its accompanying affidavits, is to create standstill in the usual and ordinary manner, an atmosphere in this court unfavorable to without any sudden, violent, or unusual the plaintiff. In passing upon questions jerk; that the conductor did not open the properly in the case, we will endeavor to door until the car stopped ; that, after the keep ourselves from any such influence. car had stopped, the plaintiff took hold of the II. Defendant orally objected to the introhandrail and stepped down into the street; duction of any evidence, upon the ground that and that, after she was off the car and had the amended petition failed to state a cause both feet upon the pavement, she sat down of action. The charge of negligence was: suddenly upon the step of the car, for some

“That while plaintiff was standing on said reason not connected with the operation of rear platform, as aforesaid, the conductor in the car, In other words, the testimony of de- charge of said car carelessly and negligently fendant's witnesses tended to exonerate de opened the door thereof while the same was fendant entirely from any negligence caus- in motion and while plaintiff, as aforesaid, was ing the plaintiff's alleged injuries.

standing on said platform, and the agents or There was also a sharp conflict in the tes- servants of said defendant carelessly and negtimony relative to a fracture alleged to have and violent jerk while plaintiff was standing on

ligently caused said car to stop with a sudden been sustained in the right parietal region of said rear platform and while the door of said plaintiff's skull. X-ray pictures were intro- car was open, as aforesaid, whereby plaintiff duced in evidence. The originals used in the was caused to and did fall from the rear plattrial were filed here for our examination. form of said car to the street on said Delmar Plaintiff's experts testified that such pictures boulevard." showed a fracture, while experts used by de.

The court overruled defendant's objection fendant testified to the contrary.

to the introduction of testimony, and excepIf the jury had believed defendant's wit- tion was saved. The question is whether the nesses, it would have been amply justified in allegation that defendant negligently stopped. finding that no such accident occurred, and the car “with a sudden and violent jerk” is that plaintiff was feigning her injuries, at sufficient, without alleging that such jerk was least in so far as she claimed they were sus unusual. The same question is raised by the tained as the result of the accident in ques- assignment of error that the court modified, tion. Since the case was argued and sub- and gave as thus modified, plaintiff's instrucmitted in this court, defendant has filed a motion No. 1, so as to require the jury to find tion to set aside such submission. Said mo- “that the street car was stopped in an untion is supported by affidavits of witnesses usual manner, when no such allegation is set who claim to have observed conduct of plain-forth in the petition, thereby broadening the tiff at her home in Chattanooga, Tenn., in- issues framed by the pleadings.” We will dicating that she had practically recovered consider the two assignments together. from any injuries she may have sustained,

[2] It is the general rule that the instrucand also tending to support an inference that tions may not be broader than the petition. her injuries were largely feigned. Affidavits Cases cited by defendant well enough suptending to show the contrary have been filed port this rule. Degonia v. Railroad, 224 Mo. by the plaintiff.

561, loc. cit. 589, 123 S. W. 807; State v. Elli[1] I. The motion to set aside the submis- son (Mo. Sup.) 176 S. W. 11, loc. cit. 13; sion of the case in this court must be over- Beave v. Transit Co., 212 Mo. 331, loc. cit. ruled. If the plaintiff conceded the truth of 351, 111 S. W. 52. If the allegation that deevery statement made therein, it would not fendant's servants negligently stopped the help matters. If the submission should be street car “with a sudden and violent jerk" set aside, there is no way this court could is broad enough to include the word "unusuconsider the matters set forth in the motion al,” then the instruction was not broader upon a reargument. This is a law case, and than the petition, and the giving of instrucit is here upon appeal. In reviewing the cor- tion No. 1, as modified, was not error. Even rectness of the trial court's rulings and suffi- though the meaning of the word "unusual" ciency of the evidence, we are confined whol- is not embraced within the words "sudden ly to matters appearing in the record proper and violent,” yet, if the sudden and violent and in the bill of exceptions, unless it be stopping of the car constituted actionable those matters and things of which this court negligence, the petition stated a cause of acmay take judicial notice. 4 Corpus Juris, | tion, 678, $ 2578; Dennison v. Kansas City, 95 Mo. To support his contention that the word loc. cit. 430, 8 S. W. 429; Bradley v. West, "unusual” is an "essential constitutive al60 Mo. loc. cit. 44; Sheets v. Railroad, 152 legation," defendant cites Saston v. Railroad, Mo. App. loc. cit. 382, 133 S. W. 124; Fitz- 98 Mo. App. 494, 72 S. W. 717; Laycock v. maurice v. Turney, 214 Mo. 628, 114 S. W. United Railways Co., 290 Mo. loc. cit. 351, 235 504.

S. W. 91; Elliott v. Railroad (Mo. Sup.) 236 273 S.W.-68

S. W. 17; Guffey v. Railroad, 53 Mo. App. , extraordinary or not usually incident to the 463, 466; and Hawk v. Railroad, 130 Mo. operation of freight trains. App. 658, 664, 108 S. W. 1119.

The Hawk Case involved the sufficiency of In the Saxton Case, the train was pas. the evidence and not of the petition. Plainsenger train of several cars, drawn by a tiff was riding as a passenger in the caboose steam locomotive. The ruling went off large- of a long freight train. Because more or less ly upon the insufficiency of the evidence to jerking and jolting are incident to the operashow an unusual or extraordinary jerk, rath- tion of long freight trains, it was held that it er than upon the insufficiency of the allega- was necessary to show that the jerk or jolt tion that defendant negligently caused the was unusual, as well as sudden and violent. train to "jerk suddenly and quickly and with With the exception of the Saxton and Laygreat force." The Court of Appeals evidently cock Cases, the cases cited by defendant were deemed the allegations insufficient, however, not ruled on the pleadings. All of the cases, as it said:

except the Laycock Case, were steam rail“The sufficiency of this allegation may be well road cases, and some of them involved the questioned. It seems to us that it should have movement of long freight trains. Manifestly, been alleged that the jerk was extraordinary, a sudden and violent jerk, caused by the or more than a usual and inevitable incident taking up of slack in a long train, whether to the acceleration of the speed of the train un- freight or passenger, might be the usual inder the circumstances."

cident of the operation of such trains in a

careful manner. The same considerations do The Laycock Case does not support the con- not enter into the operation of an electric tention of defendant, but is really authority street car. This distinction is clearly pointed supporting the sufficiency of the petition in out in the Laycock Case. To stop an electrithe case at bar. The allegation there was cally operated street car so suddenly and viothat defendant negligently “permitted and lently as to throw off of the car and into the allowed the same to move with a sudden and street a passenger standing upon the platunexpected jerk,” etc. Small, C., there said: form, is tantamount to charging that the car

“We think these 'allegations are sufficient, was stopped in an unusual manner. The Lay. after verdict, to state a cause of action. To cock Case is a very late case by the court en move a crowded electric street car with a sud- banc and is controlling here. den and unexpected jerk with such force as to [3] The allegations of the petition were throw some one inside of the car against the sufficient to state a cause of action, and were glass entrance door, breaking the glass there- broad enough to let in proof that the car was in and causing the same to strike plaintiff in the eyes and in his face, greatly injuring him, stopped in an unusual, as well as in a sudis, in substance and effect, to allege facts show den and violent, manner, and the instruction, ing an extraordinary and unusual movement of requiring the jury to find that the car was such a car. The cases cited by learned counsel stopped in an unusual as well as a sudden for appellant, of jerks, of no greater force and violent maner, did not broaden the issues than that alleged in the petition, on cable cars made by the pleadings. Assignments of error or freight trains, do not apply to this case, be

as to the sufficiency of the petition and the cause there is a wide difference between the jerks and lurches of cable cars and freight propriety of said instruction are overruled. trains necessarily incident to their operation

III. Mrs. McGowan, a witness for plaintiff, and the jerks and lurches incident to the op- was permitted to testify to a statement made eration of an electric street car."

by the conductor of the street car, immediate

ly after plaintiff fell to the effect that he had The Elliott Case was for an injury occur- opened the door of the car too soon. This ring upon a passenger train drawn by a testimony was admitted by the trial court upsteam locomotive. It involved no question of on the ground that it was part of the res the sufficiency of the petition. The negli- gestæ. Complaint is made of this ruling. gence charged was general, under the view Mrs. McGowan testified that she was sitthat the rule of res ipsa loquitur applied. ting in the lobby of the hotel looking through What was there said concerning unusual or a large plate glass window, and saw plainextraordinary jerk was with reference to the tiff leave her seat in the rear of the car and sufficiency of the evidence.

go to the platform, as the car approached In the Guffey Case, the plaintiff was in- Kingshighway. She testified that she saw the jured while riding as a passenger in a ca- door was opened before the car stopped, and boose of a freight train of about 30 cars, by saw the car brought to a sudden stop, which reason of a sudden and violent jolt or jerk threw plaintiff out with her feet in the street in stopping the train, which threw the brake- and her head and body on the step of the car. man upon plaintiff. The petition alleged that Witness got up immediately and ran out defendant operated this train “in such a care- through the door and across the sidewalk less and negligent manner as to suddenly and and intervening pavement to the assistance with great force and violence stop said car," of plaintiff, and reached her at the same etc. There was no discussion of the sufficien- time the conductor got to her. It was then cy of the petition. It was held that the evi- that the declaration, to which she testified, dence did not show a jerk or jolt which was was made by the conductor. According to

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