State v. Blackstone

• Citation: 22 S.W. 370,115 Mo. 424
• Parties: The State, Appellant, v. Blackstone
• Decision Date: 02 May 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 370

115 Mo. 424

The State, Appellant, v. Blackstone

Supreme Court of Missouri, Second Division

May 2, 1893

Appeal from Butler Circuit Court. -- Hon. J. G. Wear, Judge.

The defendant was indicted for, that, being a dramshop-keeper, he set up, kept and used in and about the premises of his dramshop, and "run," in connection with such dramshop, a pool table, etc., etc.

The indictment is based on section 1 of laws, 1889, p. 104, now section 4597, Revised Statutes, 1889. The section as originally enacted, so far as necessary to quote it, and its title, are as follows:

"Dramshops Gambling devices in. An act to prevent any dramshop-keeper from keeping or permitting to be kept in or about his dramshop certain musical instruments, any billiard, pool or other gaming table, bowling or ten-pin alley, cards, dice or other device for gaming or amusement.

"Section 1. Dramshops not to keep gaming tables, etc. Penalty. Be it enacted by the general assembly of the state of Missouri as follows: (Section 1.) A dramshop-keeper shall not keep exhibit, use or suffer to be kept, exhibited or used, in his dramshop, any piano, organ or other musical instrument whatever, for the purpose of performing upon or having the same performed upon in such dramshop, nor shall he permit any sparring, boxing, wrestling or other exhibition or contest or cock fight in his dramshop; and it shall be unlawful for any dramshop-keeper to set up, keep, use, or permit to be kept or used in or about the premises of his dramshop by any other person, or run or to be run in connection with such dramshop in any manner or form whatever, any billiard table, pool table or other gaming table, bowling or ten-pin alley, cards dice or other device for gaming or playing any game of chance; and the keeper of such dramshop shall not permit any person in or about his dramshop to play upon any such table or alley, or with cards dice or any gaming device of any kind. Every person violating the provisions of this act shall be guilty of a misdemeanor, etc."

A demurrer questioned the sufficiency of the indictment on the ground of the unconstitutionality of the statute; the demurrant was successful, and the state appeals.

Reversed and remanded.

R. F. Walker, Attorney General, for the state.

(1) The indictment charges defendant with a violation of the statute prohibiting the keeping of a pool table in a dramshop, and the facts alleged in the indictment constitute that offense. Revised Statutes, 1889, sec. 4597. (2) The act under which the indictment is drawn is not repugnant to section 28, article 4 of the constitution. Ewing v. Hoblitzelle, 85 Mo. 64; State v. Pond, 93 Mo. 606; State v. Miller, 100 Mo. 439.

C. D. Yancey for respondent.

The legislature cannot set out one or more things in the title of an act and then set in other and wholly different things in the body of the act where such other things are neither germane nor ejusdem generis. Constitution, article 4, section 28. There is neither sameness nor similitude between music and cock-fighting.

OPINION

Sherwood, J.

Section 28 of article 4 of our constitution provides that: "No bill shall contain more than one subject which shall be clearly expressed in its title." This section is the one which is claimed to have...