Ex parte Fleming v. Wengler
| Decision Date | 21 December 1916 |
| Citation | 190 S.W. 875,269 Mo. 366 |
| Parties | Ex parte EDWARD J. FLEMING v. J. J. WENGLER, Constable |
| Court | Missouri Supreme Court |
Application dismissed.
T. J Rowe and Thos. J. Rowe, Jr., for petitioner.
(1) It is no offense to be the custodian of a bet or wager upon a trial of skill, speed or power of endurance of man or beast. Ex parte Roberts, 157 Cal. 472. The Supreme Court of California, in the Roberts case, held that a person, who without consideration, gain, hire or reward, became the custodian or depositary of ten dollars in money bet by two persons with each other upon the result of a horse race then about to take place in the State of California, was guilty of no offense and that a person held in custody on a complaint charging him with so doing is entitled to be discharged upon writ of habeas corpus. In the Roberts case the petitioner was charged with a violation of section 337A of Penal Code of California enacted in 1909 (Stat. 1909, p. 21), which is in all essentials, except penalty, a re-enactment of section 351 of the Penal Code of New York. Section 351 of the Penal Code of New York is substantially the same as Sec. 4749, R. S. of Missouri, 1909. People ex rel. v. Langan, 196 N.Y 260; People ex rel. v. McLaughlin, 128 A.D. 599, 113 N.Y.S. 188. (2) Sec. 4749, R. S. 1909, in so far is it makes it a felony to be the custodian of any money, bet or wager, is unconstitutional and void, because the Legislature under the Governor's proclamation and message had no authority to pass same. The power of the General Assembly in extra session is limited by section 55, article 4, Constitution of Missouri. See also in this connection article 5, section 9, and the decisions thereunder as follows: Wells v. Railroad, 110 Mo. 286; St. Louis v. Withaus, 16 Mo.App. 247; State v. Railroad, 253 Mo. 642; House Journal, Forty-fourth General Assembly, extra session.
John T. Barker, Attorney-General, and Kenneth C. Sears for respondent.
(1) Sec. 4749, R. S. 1909, condemns "any person who becomes the custodian or depositary of any money, bet or wager or to be bet or wagered upon any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or take place within or without this State." The meaning of that provision is clear. It condemns any person who does the act specified, regardless of whether he does it for hire or privilege. State v. Cummings, 248 Mo. 509. (2) The title is sufficient, and the matters contained in the act relate to a single subject-matter. State v. Burgdoerfer, 107 Mo. 1; State ex inf. v. Delmar Jockey Club, 200 Mo. 56; State v. Brodnax & Essex, 228 Mo. 53; Ex parte Herman, 45 Tex. Crim, 343. (3) The special session of the General Assembly in 1907 had sufficient authority to enact section 4749. Senate and House Journals for 1907 (Extra session); State v. Woolen, 128 Tenn. 456.
OPINION
In Banc.
Habeas Corpus.
I. The petitioner, who is in custody under a warrant issued by a justice of the peace upon a charge of violating section 4749 of the Revised Statutes of 1909, sued out a habeas corpus in this court, praying for his discharge. The statute under which the petitioner was arrested, so far as it need be quoted, is, to-wit:
"Or any person who becomes the custodian or depositary of any money, bet or wager or to be bet or wagered, upon any trial or contest of skill, speed or power of endurance of man or beast which is to be made or take place within or without this State . . . shall, on conviction, be adjudged guilty of a felony and shall be punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years or by imprisonment in the county jail for a term of not less than six months or more than one year, or by a fine of not less than $ 500, or by both such fine and imprisonment." [Laws 1907, p. 232; now R. S. 1909, sec. 4749.]
It was stated in the affidavit for the warrant that two persons made a bet with each other of five dollars apiece on the result of a horse race in St. Louis County, and that petitioner knowingly became custodian of the ten dollars so wagered, thereby committing a felony
II. The mere act of two persons betting privately with each other on the result of a horse race is gambling, but the offense is only a misdemeanor and not a felony. [Ullman v. St. Louis Fair Assn., 167 Mo. 273, 66 S.W. 949, and cases cited.]
The section under review was presented to this court in State v. Cummings, 248 Mo. 509, 154 S.W. 725, where it was held that the term "custodian" embraced all persons who received and held money as the stakeholder of bets laid upon the result of a horse race, as the affidavit shows was done by petitioner. Unless, therefore, the act under review was illegally enacted, the petitioner must be remanded to the custody of the officer who held him in charge under the process issued by the justice of the peace, although to do so presents the singular incongruity of an intention on the part of the Legislature to make the stakeholder of two bettors guilty of a felony in so doing, whereas the principals who made the bet were only guilty of a misdemeanor; for it has been distinctly held by Judge Gantt, in State v. Oldham, that when the Legislature enacted an antibookmaking law similar to this, it had no intention to prohibit "even betting on horse races," but intended to...
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