Cotton Oil Co. v. Bank of Steele. that the signature to the checks was forged and written without any authority and without the knowledge of the plaintiff; then the court instructs you that they were not the checks of the plaintiff, and the defendant had no authority to pay the same, provided you further find that the checks were drawn upon the defendant bank. Unless you find the facts to be as set out in another instruction." "Instruction No. 4: You are further instructed that where checks were drawn upon a bank as the checks in question were drawn upon the defendant bank, and the bank cashed said checks, then such bank is bound to know the signature thereto and cashes the same at its peril, and if it afterwards turns out that said check is forged, false and bogus, then the loss falls upon said bank, unless the bank is relieved of this responsibility from some other cause as set out in other instructions given in this case.” Number one is challenged because it ignores the defense, and three and four are challenged because the reference to other instructions is too vague and uncertain, and is calculated to confuse rather than to enlighten. If any evidence had been shown tending to connect plaintiff with the forgeries, or acts on the part of plaintiff which tended to mislead defendant, and throw it off guard, and divert it from that careful inspection which every bank owes its customer before it pays a check bearing his name, then defendant's challenge of the three instructions would be a matter for consideration. But here plaintiff was in no manner connected with the forgeries, and was guilty of no act by word or deed, which could have in any manner influenced or affected defendant in the payment of the checks. All plaintiff did was to leave its check book at its scale house presumably situate on its gin premises where the criminally inclined might get hold of it. If such a circumstance can be magnified into the importance of constituting a fact tending to connect plaintiff with the forgery, then practically every country gin, Cotton Oil Co. v. Bank of Steele. merchant and farmer who keeps a bank account would be subject to dire consequences if some thief in his temporary absence picked up his book and tore out a check, and later forged his signature, and his bank honor the check. We do not think that the circumstances tending to show negligence on the part of plaintiff were such as to prove or tend to prove that character of negligence which the law requires to preclude a customer from recovering from his bank where the bank has charged his account with a forged check; hence there was no error in giving plaintiff's instructions. Defendant asked an instruction to the effect that the relation between plaintiff and defendant was that of principal and agent, which was refused. What we have heretofore said about the relation between plaintig and defendant disposes of this assignment. Defendant asked and was given an instruction telling the jury that the plaintiff was bound to know the signature of its employee, Barnes, and it urges that plaintiff having voluntarily paid the draft drawn by defendant to repay it for the forged checks, after plaintiff knew or by the exercise of ordinary care might have known that the checks were forged, cannot thereafter recover. But it will be noted that plaintiff paid the draft before it knew of the forgery; and as soon as it learned thereof defendant was notified. We cannot say that it was lack of ordinary care not to inspect the checks in the St. Louis office. The Micola gin account was kept at Caruthersville nearby, where the agents in charge were expected to check up, and this under the business system between plaintiff and defendant was the proper place to make inspection. The Mechanics American National Bank in St. Louis paid defendant's draft by direction theretofore given. The draft envelope, as had been the manner of business conduct between plaintiff and defendant, was not opened from the time it left defendant until it arrived back at Caruthersville. Immediately upon opening the envelope State v. Turlington. the forgeries were discovered, and defendant notified, and demand made for the return of the money in effect charged against plaintiff by defendant for the forgel checks. Plaintiff's conduct in the matter was just what a prudent customer would do who had just received from his bank his canceled checks, and upon examination had discovered a forgery. We find no error. The judgment was clearly for the right party and should, therefore, be affirmed, and it is so ordered. Sturgis, P. J., and Farrington, J., concur. STATE OF MISSOURI, Respondent, v. J. A. TURLINGTON, Appellant. Springfield Court of Appeals, June 25, 1918. 1. INDICTMENT AND INFORMATION: Gaming. Information charging that defendant did unlawfully permit a certain gambling device called a punch board, designed and used for purpose of playing games of chance for money and property, to be used for purpose of gambling in a certain building under his control, charged offense in language of Revised Statutes 1909, section 4753, and was suffi cient, although it did not describe gaming characteristics of alleged device. 2. GAMING: Punch Board: "Gambling Device." Although patrons of punch board, as condition precedent, were required to purchase a three-cent post card for five cents, there was present the element of chance, the possibility of receiving a knife worth fifty cents or $1.50, in addition to post card, and the device was a "gambling device," within Revised Statutes 1909, section 4753. 3. CRIMINAL LAW: Argument and Conduct of Counsel. In prosecution against defendant for permitting a punch board, a gambling device, to be operated in his store, remarks of prosecutor, "That's the way little boys become gamblers," simply called the jury's attention to what they already knew, and was not prejudicial. 4. -: Judicial Notice: Gambling Instinct. It is common knowledge that gambling instinct possesses many. Appeal from Dunklin County Circuit Court.-Hon. W. S. C. Walker, Judge. State v. Turlington. AFFIRMED. Hall & Billings and Tribble & Byrkit, for appellant. BRADLEY, J.-Defendant was charged by information of the prosecuting attorney of Dunklin county with violating section 4753, Revised Statutes 1909, by permitting a punch-board alleged to be a gambling device to be used or operated in his store building. Upon trial before the court and a jury, defendant was found guilty and fined $50. Unsuccessful in the usual motions for a new trial and in arrest he appealed to this court. The sufficiency of the information is challenged. Omitting formal parts the information is as follows: "That J. A. Turlington did unlawfully permit a certain gambling device called a punch-board designed and used for the purpose of playing games of chance for money and property, to be used for the purpose of gambling in a certain building there situate, and under the control of him, the said J. A. Turlington," etc. It is contended that the information is so general in its charges that it does not sufficiently advise the defendant of the offense for which he must go upon trial. In other words it is contended that the information should describe the gaming characteristics of the alleged gambling device. Appellant cites State v. Wade, 267 Mo. 249, 183 S. W. 598, to support his contention regarding the information. The information there challenged was under section 4750 where a number of specific gaming devices are named, followed by a general denouncement of any gaming device of whatever kind or pattern. The information there was an offense falling within the general provisions of the statute, and was charged in language similar to that in the information in the case at bar. The information there was held insufficient because there was no allegation bringing it within the class of the enumerated devices. Following the well known rule of ejusden generis 200 M. A.-13 State v. Turlington. it was held in the Wade case that an information charging an offense embraced within the general provisions of section 4750 must contain sufficient averments to show that the offense charged is within the class of offenses specifically named. Furthermore it is pointed out in the Wade case that an information, containing the averments there challenged would be sufficient under section 4753 known with reference to gaming devices as the misdemeanor section. So to our mind the Wade case instead of supporting defendant's contention conclusively determines that point against him. The information charges the offense in the language of the statute, and follows approved forms and precedents, and we think is sufficient. [State v. Wade, supra; State v. Leaver et al., 171 Mo. App. 371, 157 S. W. 821; State v. Howell, 83 Mo. App. 198; Kelly's Crim. Law & Pr. (3 Ed.), sec. 953.] The point is made that the manner in which defendant conducted the punch-board was no offense under the law, and that his instruction in the nature of a demurrer to the evidence should have been given. The evidence shows that the punch-board was a board in which there were a great many holes. In each of these holes was a small strip of paper containing a number. These holes were covered, but the cover was so designed as to indicate exactly the location of each hole. The prizes were knives and post cards. The knives ranged in value from fifty cents to a $1.50, and the post cards were worth three cents each. A small wooden pin was used to punch the covering of the hole. Five cents a punch was charged, and the number on the slip of paper in the hole punched indicated whether a post card or a knife was the reward, and if a knife it indicated what knife. There were no blanks. The purchaser of a punch got a post card or a knife. When the board was first set up a "punch" was sold for five cents; but being advised that there might be less taint of a gamble or game of chance if the post card was sold in advance, this method was . |