State v. Walsh

Citation37 S.W. 1112,136 Mo. 400
PartiesSTATE v. WALSH.
Decision Date15 December 1896
CourtMissouri Supreme Court

Appeal from St. Louis court of criminal correction; David Murphy, Judge.

Thomas Walsh was convicted of pool selling, and appeals. Reversed.

T. J. Rowe and Morris, Butler & Fitzgerald, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, Asst. Atty. Gen., for the State.

SHERWOOD, J.

The defendant was prosecuted under the provisions of an act approved March 12, 1895, in relation to book making and pool selling. Being tried, he was convicted, and sentenced to pay a fine of $1,000, and to be imprisoned for six months in the city workhouse.

The act on which this information is bottomed is the following:

"An act to prohibit book-making and pool-selling at any place other than upon the premises of regular race-courses, with emergency clause.

"Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 1. That any person who keeps any room, shed, tenement, tent, booth or building, or any part thereof, within this state, and who occupies same with any book, instrument or device for the purpose of recording or registering bets or wagers, or selling pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or to take place within or without this state, or any person who records or registers bets or wagers, or sells pools upon the result of 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; or, being the owner, lessee or occupant of any room, tenement, shed, tent, booth or building, or any part thereof, knowingly permit the same to be used or occupied for any of the purposes hereinabove set forth, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers or selling of pools as are hereinabove set forth, or becomes the custodian or depositary for hire or privilege of any money, property or thing of value which is staked, wagered or pledged contrary to the provisions of this act, shall be guilty of a misdemeanor, and on conviction shall be punished by imprisonment in the county jail for a term of not less than six months or more than one year, and by a fine of not less than one thousand dollars, or by both such fine and imprisonment: provided, that nothing in this act shall be so construed as to prohibit or make it unlawful for any person to engage in or register bets and wagers, make books, sell pools or bet upon any trial or contest of speed of a horse, or between horses, on the premises or within the limits or enclosure of a regular race-course on which such contest of speed is had, and at and prior to the time thereof: provided, that it shall be unlawful to make and sell said pools or book-bets to minors; and any person selling said pools and book-bets to any minor shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment in the county jail for a term of not less than three months or more than one year, and by a fine of not less than five hundred dollars.

"Sec. 2. All acts or parts of acts inconsistent or in conflict with the foregoing section are hereby repealed."

Laws 1895, pp. 150, 151.

The paramount issue presented by the record in this cause may take the form of the question: Is the act just quoted constitutional? It will be noted that the act does this: First, it makes it punishable as a misdemeanor for any person who within this state, keeps any room, etc., and who occupies the same with any book, instrument, or device for the purpose of recording bets, etc., or selling pools upon the result of any trial or contest of skill, speed, etc., of man or beast, which is to be made or take place within or without this state; second, a misdemeanor for any person who thus records such bets, etc., or sells pools, etc.; third, a misdemeanor for any owner, lessee, or occupant of any room, etc., knowingly to permit the same to be used, etc., for any of the purposes aforesaid; fourth, a misdemeanor for such person to keep in such room, etc., any device, etc., or exhibits, etc., for the purpose of recording bets, etc.; fifth, a misdemeanor for any one to become the custodian of any money, etc., which is staked, wagered, or pledged, contrary to the provisions...

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