Batley v. Ritchie

• Decision Date: 21 December 1928
• Docket Number: 4692
• Court: Utah Supreme Court
• Parties: BATLEY v. RITCHIE, District Judge

273 P. 969

73 Utah 320

BATLEY v. RITCHIE, District Judge

No. 4692

Supreme Court of Utah

December 21, 1928

Writ of review by Batley against Hon. M. L. Ritchie, one of the Judges of the District Court of Salt Lake County, to review a conviction of violating a municipal ordinance.

JUDGMENT AFFIRMED.

Ray S McCarty, of Salt Lake City, for plaintiff.

William H. Folland, City Atty., and Shirley P. Jones, Asst. City Atty., both of Salt Lake City, for defendant.110:CHERRY, J THURMAN, C. J., and HANSEN, J., concur. GIDEON, J., STRAUP J. dissenting.

OPINION

CHERRY, J.

The plaintiff, B. Batley, was convicted in the city court of Salt Lake City of violating a municipal ordinance. He appealed to the district court of Salt Lake county, where he was again tried and convicted, and sentenced to pay a fine of $ 200, or in default thereof to be imprisoned for four months. He has brought the case here by writ of review, contending that the judgment against him is void for lack of jurisdiction of the court to render it: (1) Because the ordinance he was accused and convicted of violating is invalid and unconstitutional; (2) because the amended complaint against him fails to state a public offense; and (3) because the verdict of the jury, upon which the judgment was entered, is null and void for uncertainty and ambiguity.

The ordinance in question is as follows:

"Section I. There is hereby created a new section in chapter 29, Revised Ordinances of Salt Lake City, Utah, 1920, to be known as section 1221, prohibiting bookmaking and pool selling, which said section shall read as follows:

"Sec. 1221. It shall be unlawful for any person to engage in pool selling or bookmaking with or without writing at any time or place; or for any person to keep or occupy any room, shed, tenement, tent, booth or building, flat or vessel or any part thereof or to occupy any place or stand of any kind upon any public or private grounds within the corporate limits of Salt Lake City with or without books, papers, apparatus or paraphernalia for the purpose of recording, receiving, reporting or registering bets or wagers or purported or pretended bets or wagers or to sell pools or to make books with or without writing upon the result of trial or contest of skill, speed or power of endurance of man or beast, or upon the result of lots, chance, casualty, unknown or contingent event whatsoever and it shall be unlawful for any person to receive, register, report or forward or pretend or purport to receive, register, report or forward in any manner whatsoever any money, thing or consideration of value, bet or wagered or offered for the purpose of being bet or wagered or to sell pools upon such result or pretended or purported result; and it shall be unlawful for any person to conduct, keep, carry on or maintain by himself or his agents or employees any turf exchange, pool room or other place by whatever name known where bets or wagers or pretended bets or wagers on the result of any horse race or purported horse race wherever run or contest or purported contest of skill or of endurance of men or animals wherever made or had are, or are made, received or paid and it shall be unlawful for the owner or lessee or occupant of any said place to knowingly permit any part of the premises to be used for the purpose of conducting any turf exchange, pool room or other place for the purpose of receiving bets on the result of any horse race or pretended or purported horse race or on the result of any contest or purported contest of skill or endurance of men or animals.

"It shall be unlawful for any person to bet or wager anything of value on the result of any horse race or purported horse race or upon the result of any contest or purported contest of skill or endurance of men or animals by means of bookmaking, pools or other devices; and it shall be unlawful for any person to aid, assist or abet in any manner in any of said acts which are hereby forbidden.

"Section II. Any person found guilty of violation of any of the provisions of this ordinance shall be punishable by fine not to exceed two hundred ninety-nine ($ 299.00) dollars or six months in jail or both such fine and imprisonment."

The charging part of the amended complaint is that "the said defendant did then and there at said Wilson Hotel Smokery unlawfully aid, assist or abet in pool selling at said place, and did then and there at said Wilson Hotel Smokery unlawfully aid, assist or abet in receiving, registering and reporting money bet or wagered on the result of a horse race, contrary to the provisions of section 1221," etc. The verdict found the accused "guilty of aiding, assisting or abetting in pool selling or of aiding, assisting or abetting in receiving and registering a bet in money on the result of a horse race as charged in the amended complaint."

The objection to the validity of the ordinance is that it is in conflict with Redd Racing Act (Laws of Utah 1925, c. 77), in force at the time, which authorized a form of pool selling under certain limitations. This question has been disposed of contrary to plaintiff's contention by our recent decision in Lagoon Jockey Club v. Davis County (Utah) 72 Utah 405, 270 P. 543, which was decided after the argument of the present case.

It is contended that the amended complaint, upon which the plaintiff was convicted, is bad, because it fails to particularize the acts relied upon to constitute a violation of the ordinance, and consists of mere general statements amounting only to legal conclusions. As this proceeding challenges the judgment for jurisdictional defects only, we examine the amended complaint only for the purpose of determining whether it is sufficient to invoke the jurisdiction of the trial court.

In criminal as well as in civil action, initial pleadings are essential to invoke jurisdiction, because courts do not and may not act upon their own motion. Hence in a criminal prosecution in this state there must be a written accusation (a complaint, information, or indictment), or the court has no jurisdiction to render a judgment. The test of sufficiency, however, of an accusation for the purpose of invoking jurisdiction, is not the test to which such pleading is subjected when attacked by motion or demurrer.

Where it is clear that an attempt has been made to charge an offense of a kind over which the court has jurisdiction the accusation is sufficient to invoke the jurisdiction of the court. 29 C. J. 41. The inquiry in such case is not whether there is in the accusation such specific allegations of the details of the charge as would make it good on demurrer, but whether it describes a class of offenses of which the court has jurisdiction and alleges the defendant to be guilty. 12 R. C. L. 1202.

Assuming that the complaint in question was defective and demurrable, it still was sufficient to confer jurisdiction and the action of the trial court in holding it sufficient was within jurisdiction and constituted at most an error, for which no relief may be granted in this proceeding.

The objections to the verdict are that it is void for uncertainty and ambiguity, for which reason the court had no jurisdiction to pass sentence or render a judgment upon it. As before stated, by the verdict the accused was found "guilty of aiding, assisting, or abetting in pool selling, or of aiding, assisting or abetting in receiving and registering a bet, * * * as charged in the amended complaint."

The contention is that the verdict finds the defendant guilty in the alternative, of one or the other of two separate and distinct offenses, without specifying the offense actually committed. The interpretation of the verdict involves an examination and consideration of the ordinance. What is the effect of the ordinance, and what does it prohibit and punish? It is clear that the purpose is to prohibit that form of gambling called bookmaking and pool selling. But those terms have no specific legal signification. An ordinance declaring it unlawful to engage in bookmaking or pool selling, without further definition, would obviously be bad, as indefinite and uncertain. The ordinance, however, after declaring it unlawful to engage in bookmaking or pool selling, further specifies particular acts as unlawful, including, among others, the receiving, registering, and reporting of bets, etc. The particular acts specified as unlawful are all such as may be connected with or related to bookmaking or pool selling, as those terms are popularly understood. The ordinance, in ultimate effect, is therefore a prohibition against the practice of bookmaking and pool selling, and bookmaking and pool selling consist of the doing of one or more of the particular acts specified in the ordinance. The offense is generally described by name, and particular described by the particular acts which constitute it. When the accused was charged with aiding and abetting in pool selling, and with aiding and abetting in receiving, registering, and reporting money bet on the result of a horse race, he was charged with but one transaction or offense, and the verdict which found him "guilty of aiding, assisting, or abetting in pool selling, or of aiding, assisting, and abetting in receiving and registering a bet on the result of a horse race," was a finding of but one transaction of offense, described in the alternative; its true meaning being that he aided and abetted in pool selling, by aiding and abetting in the receiving and registering of a bet on the result of a horse race. There was therefore no uncertainty or ambiguity in the verdict.

But assuming that the ordinance means to and does distinguish pool selling from the act of receiving and registering bets, it certainly makes both unlawful, and...