Opinion
No. 21772.
May 5, 1952.
APPEAL FROM THE CLAY COUNTY CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
J.K. Owens, Kansas City, Lawson, Hale Coleberd, Arthur R. Kincaid, Liberty, for appellants.
Robert G. Kirkland, S. Preston Williams, North Kansas City, William E. Turnage, Liberty, for respondent.
The defendants have appealed from a judgment of conviction of the crime of permitting a gambling device on certain premises, which is a misdemeanor. Section 563.420, RS 1949, V.A.M.S. Appellants Tebbe and Matheson were each sentenced to jail for 1 year, and Tucholl was sentenced for 6 months.
A joint motion for new trial was filed, and the assigned grounds are:
"1. That the court erred in overruling and denying the `motion to quash search warrant, sheriff's return thereon and to suppress evidence secured thereunder' filed herein on May 17, 1951.
"2. That the court erred in admitting evidence of state witnesses procured under the execution of the aforesaid search warrant all of which was prejudicially and erroneously admitted.
"3. That the court erred in failing and refusing to direct a verdict of acquittal for defendants and each of them at the close of the state's case and at the close of the entire case.
"4. That the court erred in refusing and denying Instruction A requested by defendants and each of them.
"5. That the court erred in giving to the jury Instructions numbered 1 to 14, both inclusive, each requested by the state and in the giving of each and every one of said Instructions."
In their brief appellants present the one proposition that the court erred in overruling their motion to quash the search warrant and to suppress the evidence secured thereunder because it failed to describe the premises to be searched "as nearly as may be." The record discloses that there was a motion filed to quash the search warrant and to suppress the evidence secured thereunder; that evidence was heard in support of said motion, and that the court overruled the same. The question is, does the motion for new trial sufficiently preserve that point for review on appeal?
Section 547.030 RS 1949, V.A.M.S. — Criminal Procedure — provides: "A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor." The question of the sufficiency of a similar assignment in a motion for new trial was before the Supreme Court in State v. Thompson, 338 Mo. 897, 901, 92 S.W.2d 892, 893. In that case the assignment read: "The court erred in overruling defendant's motion to quash the search warrant and suppress the evidence." The court held that the assignment was too general and failed to comply with the above quoted section, and stated: "* * * therefore there is nothing for us to review." In the more recent case of State v. Powers, 350 Mo. 942, 169 S.W.2d 377, the court reviewed many authorities discussing the sufficiency of assignments in a motion for new trial and held that an assignment which merely stated that "the court erred over the objection and exception at the time in overruling defendant's motion to suppress evidence" was too general and indefinite to preserve anything for review. The court said, 350 Mo. 378, 169 S.W.2d 378: "Unless the assignment specifies the reasons why the ruling was erroneous it presents nothing for review on appeal." That case also holds that "reasons stated in the brief but not in the motion for new trial are of no avail." See, also, State v. Ellis, Mo.Sup., 159 S.W.2d 675, 676(5); State v. Knight, 356 Mo. 1233, 206 S.W.2d 330; State v. Londe, 345 Mo. 185, 132 S.W.2d 501, 506.
We hold that the validity of the search warrant is not preserved by the motion for new trial and, therefore, cannot be reviewed on appeal. For a motion sufficiently preserving such a point, see State v. McBride, Mo.App., 32 S.W.2d 134, 135.
The second assignment in the motion, that error was committed in the admission of evidence procured under the search warrant, is too general to preserve anything for review. In State v. Arnett, 338 Mo. 907, 92 S.W.2d 897, at page 901, the court considered very similar assignments, and said: "These assignments are insufficient to raise any question for our review. We cannot determine therefrom what reason appellant had in mind as to why the evidence was incompetent. Having failed to assign any reason, we have nothing before us for review." See, also, State v. Sheets, Mo.App., 229 S.W.2d 703; State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024, 1026; State v. Marlin, Mo.Sup., 177 S.W.2d 485; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Pierce, Mo.Sup., 236 S.W.2d 314.
Assignments 4 and 5, relating to the giving and refusal of certain numbered instructions, are too general to preserve anything for review. It has many times been held that before an alleged error in giving or refusing an instruction can be reviewed by an appellate court, the assignment in the motion for new trial must state the reason why the giving or refusal of the instruction was error. State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435; State v. Stevens, 325 Mo. 434, 29 S.W.2d 113; State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774; State v. Pierce, supra.
There is an additional reason why we cannot consider whether the court erred in refusing Instruction A. This instruction was in the nature of a demurrer to the evidence and was offered at the close of the state's evidence, but the offer was not renewed at the close of all the evidence. The failure to renew the offer at the close of the whole case waived the question of the propriety of the court in overruling the demurrer at the close of the state's evidence. For an array of cases so holding, see, Mo. Dig., Vol. 9A, Criminal Law, 901.
In their brief defendants do not preserve and argue the question of the sufficiency of the evidence to sustain their conviction. They attack only the sufficiency of the search warrant, which we have held is not before us for review. However, we think assignment 3, in the motion for new trial, is sufficient to require us to read the evidence and determine whether it is sufficient to support the verdicts. State v. Odbur and Shade, 317 Mo. 373, 377, 295 S.W. 734; State v. Henderson, supra; State v. Hodges, Mo.Sup., 295 S.W. 786; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863.
The evidence discloses that defendants operated a poolroom at 320 S. 14th Street, North Kansas City, Missouri; that near the rear of the pool hall was a door leading into a restroom, which was approximately 4 feet wide and 7 feet long; that there was a door leading from this restroom into an adjoining room which was about 12 by 12 feet and which had no windows and no entrance except through the restroom. Witness Thomas testified that he was a deputy sheriff of Clay County and that about 2 p. m. Saturday, March 10, 1951, he entered the poolroom and purchased a soft drink from defendant Tucholl and began to play pool with an elderly gentleman; that within a few minutes he noticed Tucholl, who was standing near the front of the poolroom, escort three men back to the restroom where they disappeared; that shortly thereafter Tucholl returned to the front of the poolroom and, within a few minutes, escorted two additional men to the restroom where they also disappeared; that Tucholl returned to the poolroom and shortly thereafter Mr. Duncan, Chief of the North Kansas City Police Force, Mr. Livingston, a policeman of the same force, and Sgt. Curtis, of the highway patrol, entered the poolroom and served a search warrant on Tucholl, that, after some protest, Tucholl produced the keys to the rear room and they all started toward this room; that when they were near the restroom door Tucholl called in a loud voice "91". The officers and Tucholl passed through the restroom and unlocked the door to the adjoining room and found a crap or dice game in progress. Defendants Matheson and Tebbe were seated at a table and there were 6 or 7 men standing around the table engaged in the game; the officers saw one of the men roll the dice on the table as they entered, and saw about $500 in cash on the table; the dice, money and certain gambling equipment were retained by the officers and introduced in evidence. The officers described the equipment in detail, and how it is used to gamble with dice. They also found what is described as a "loud speaker" or "interphone system" located near the door at the rear of the pool hall and wires leading therefrom to a "speaker" located in the gambling room. This "system" could be used for communication between the pool room and the "back room" without opening the door.
We think the evidence is sufficient to support the verdict against each defendant.
We have examined the record proper and find no error therein. The information is sufficient; the verdicts are in proper form, and the punishment assessed is within the limits prescribed by the statute. Allocution preceded the judgment. State v. Pierce, supra.
Finding no prejudicial error, the judgment is affirmed.
All concur.