Commonwealth v. Starr

• Decision Date: 14 October 1914
• Citation: 160 Ky. 260,169 S.W. 743
• Parties: COMMONWEALTH v. STARR. [d1]
• Court: Kentucky Court of Appeals

169 S.W. 743

160 Ky. 260

COMMONWEALTH v. STARR. ^[d1]

Court of Appeals of Kentucky.

October 14, 1914

Appeal from Circuit Court, Jefferson County, Criminal Branch.

Lawrence Starr was indicted for crime, and from a judgment sustaining a demurrer to the indictment, the commonwealth appeals. Judgment reversed, with directions to overrule the demurrer.

James Garnett, Atty. Gen., and J. M. Huffaker, Commonwealth's Atty., and Loraine Mix, Asst. Commonwealth's Atty., both of Louisville, for the Commonwealth.

Aaron Kohn, James P. Edwards, Arthur H. Mann, and Kohn, Bingham Sloss & Spindle, all of Louisville, for appellee.

TURNER J.

Appellee was indicted under the first section of an act of 1908 (Acts 1908, c. 46), the title of which is:

"An act declaring it unlawful and providing penalties for any person to provide, open, control, manage or keep any room building, float, vessel or premises in this commonwealth wherein any persons may assemble and congregate to bet and wager money upon horse races and other contests run and decided in this state or in any other state or country, or to aid or abet another in so doing, or to assemble or bet or wager therein."

The first section of that act provides:

"It shall be unlawful for any person to provide, manage, maintain, or keep any room, building, float, vessel or premises in this state, or to aid and abet others in so doing wherein persons assemble and congregate to bet and wager money or other things of value on the result of any horse race, or any other contest between man or beast run or to be decided in this state, or any other state or country, or advertised, posted or reported as having been run or to be run; or wherein any such money is bet or wagered or received and deposited to be transmitted elsewhere to another to so bet or wager, or wherein or whereat any money or other things of value shall be received or paid for any ticket, lot, pool or chance on the result of any such horse race or races run or to be run in or out of the commonwealth of Kentucky, or advertised, posted or reported as having been so run or to be run, and any person or persons who shall violate any provisions of this section shall, on conviction, be fined not less than one thousand ($1,000) dollars nor more than five thousand ($5,000) dollars and confined in the county jail not less than six (6) months nor more than twelve (12) months for each offense; and each day that such poolroom, building, float, vessel or other premises is thus maintained, kept, operated or conducted shall constitute a separate offense."

The indictment is as follows:

"The grand jury of the county of Jefferson, in the name and by the authority of the commonwealth of Kentucky, accuse Lawrence Starr of the offense of unlawfully and willfully providing, managing, maintaining, and keeping a room, building, and premises in this state wherein money was bet and wagered and received and deposited to be transferred elsewhere to another to so bet and wager, on the result of horse races to be decided in this state and in other states and countries, and advertised, posted, and reported to be run and as having been run, committed in manner and form as follows, to wit: The said Lawrence Starr in said county of Jefferson, state of Kentucky, on the 8th day of January, A. D. 1914, and within 12 months next before the finding of this indictment, did unlawfully and willfully provide, manage, maintain, and keep a room, building, and premises in this state, to wit, a room located in the city of Louisville on the south side of Jefferson street, between Fourth and Fifth streets, over Grote's saloon, wherein money was then and there bet and wagered by Edwin Jennings, Rivers Wright, and other persons whose names are unknown to the grand jurors, with said Starr and his agents, acting for him, on the result of horse races to be decided in the state of Kentucky and in other states and countries and at said time advertised, posted and reported to be run and after such races, as having been run, and wherein money was received from and deposited by said Jennings, Wright and others, unknown to the grand jurors, to be transferred elsewhere to another whose name is unknown to the grand jurors, to be so bet and wagered on the result of such races, said money being so deposited with and received by said defendant and his agents acting for him; the grand jurors further state that the place and premises so maintained and managed by said defendant was not an inclosure during a regular race meeting wherein horse racing was being conducted under license from the state racing commissioners of this state and was not an inclosure wherein trotting or pacing races were being conducted by a regularly organized association, organized for that purpose, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the commonwealth of Kentucky."

The sufficiency of this indictment is attacked upon three grounds: First. That the act in question did not create any new offense, but merely provided a more drastic punishment for the common-law offense of operating a poolroom, and that therefore the indictment was defective in failing to allege: (1) That the defendant kept a room for the purpose of having persons to assemble and congregate to bet and wager; (2) that persons did in fact assemble and congregate to bet and wager; (3) that money was won and lost; (4) that the place was in the occupation and under the control of the defendant. Second.

Because the facts and circumstances constituting the offense are not set forth with that degree of certainty and particularity required by sections 122 and 124 of the Criminal Code. Third. Because even if the act is held to create new offenses, yet the body of the act, in so far as it goes beyond the scope of the alleged restrictive title, is void because in violation of section 51 of the Constitution. That is to say, that the title to the act gives no indication that it purposed to make it an offense to provide a room where there is no assemblage and congregation of persons, or to bet on anything except on a race or other contest run and decided; nor does it indicate a purpose to make it an offense to maintain a place where money is received and deposited to be transmitted elsewhere to be bet.

The lower court sustained the demurrer solely upon the last-named ground, but we will consider them in the order named.

It is a safe rule in the interpretation of penal statutes to look to the evil which is intended to be corrected, as well as to the history of the efforts to correct it. For a number of years persistent but ineffectual efforts in...