Ex Parte Neet

• Decision Date: 30 June 1900
• Parties: Ex parte NEET.
• Court: Missouri Supreme Court

57 S.W. 1025

157 Mo. 527

Ex parte NEET.

Supreme Court of Missouri.

June 30, 1900.

CRIMINAL LAWS — PLAYING BASEBALL ON SUNDAY — CONSTRUCTION OF STATUTE — HABEAS CORPUS.

1. The game of baseball is not within the prohibition of Rev. St. 1899, § 2242, providing that every person who shall be convicted of horse

racing, cock fighting, or playing at cards or games of any kind on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor.

2. One who is imprisoned, under a judgment of conviction by a court of competent jurisdiction, for an act which is not in contravention of any law, may obtain his release on writ of habeas corpus, under Rev. St. 1889, §§ 5375, 5378, providing for the discharge of a prisoner on habeas corpus when no legal cause is shown for the imprisonment.

Robinson, Brace, and Valliant, JJ., dissenting.

Application by Joseph Neet for writ of habeas corpus for the purpose of obtaining his discharge from imprisonment under a warrant of commitment issued by the criminal court of Lafayette county. Application granted.

John S. Blackwell & Son and Wm. Aull, for petitioner. E. C. Crow, Atty. Gen., and Clarence Vivion, for respondent.

MARSHALL, J.

This is a proceeding by habeas corpus, instituted by the petitioner for the purpose of obtaining his discharge from the custody of the sheriff of Lafayette county, and from his imprisonment in the county jail, where he is held under a warrant of commitment issued by the criminal court of that county upon a conviction before that court "on a charge of playing baseball on Sunday"; the information simply charging that the petitioner and others therein named, "on the 4th day of June, 1899, at the county of Lafayette and state of Missouri, did then and there unlawfully play at a game of ball, commonly called `baseball,' on the first day of the week, commonly called `Sunday,' against the peace and dignity of the state," etc. Among the other persons charged in the information with having played the game of baseball with the petitioner was one R. Vaughan, who was also convicted. He appealed to the Kansas city court of appeals, and that court dismissed the appeal, on the ground that an appeal would not lie from a conviction upon an information. 3 Mo. App. Rep'r, 268.

Two questions are presented by this case — First, is it unlawful in Missouri to play a game of baseball on Sunday? and, second, is habeas corpus an available remedy to one convicted and imprisoned for so doing?

1. Section 2242, Rev. St. 1899, is relied on as furnishing support for the conviction in this case. That section is as follows: "Every person who shall be convicted of horse racing, cock fighting or playing at cards or games of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars." This section (then section 1580, Rev. St. 1879) was construed by the Kansas City court of appeals in the case of State v. Williams, 35 Mo. App. 541, to prohibit playing a game of baseball on Sunday. It was conceded that games of baseball are not within the express prohibition of the statute, and it was likewise conceded that "where particular words of a statute are followed by general words, as if, after the enumeration of classes of persons or things, it is added, `and all others,' the general words are restricted in meaning to objects of the like kind with those specified." But it was held that the words, "or games of any kind," must be construed to embrace games of baseball, because the statute "was evidently intended to prevent a desecration of the Sabbath, by restraining the doing of those things which are offensive to a Christian community by being done on that day," and that "the statute was not aiming to prevent the doing of things immoral per se, or the tendency of which is immoral, as the inhibition is not against gambling or betting on the games, but merely against the doing the act on that day, though it be not immoral or tending to immorality." At the same (March) term, 1889, the St. Louis court of appeals, in the case of Association v. Delano, 37 Mo. App. 284, loc. cit. 289, held that section 1580, Rev. St. 1879 (now section 2242, Rev. St. 1899), only prohibited "games of chance or other games of an immoral tendency, and that it does not involve a prohibition of athletic games or sports, which are not of an immoral tendency, but which tend to the physical development of the youth, and are rather to be encouraged than discouraged." It was also held that the general words, "or games of any kind," must be construed to mean games of the same kind as the games specially designated in the statute. It was accordingly held that a contract made by the defendants, as members of the Amateur Athletic Association, with the plaintiff, for the use of the fair grounds for the purpose of playing athletic games and sports thereon on Sunday, was a valid contract. But, as the decision was in conflict with the decision of the Kansas City court of appeals, in State v. Williams, supra, the case was certified to this court. This court held that there is no statute in this state which prohibits athletic games and sports on Sunday, unless section 3854, Rev. St. 1889 (formerly section 1580, Rev. St. 1879, and now section 2242, Rev. St. 1899), does so, and, after citing that section said: "But these prohibitions are evidently leveled against sports and games that have a demoralizing tendency, and do not extend to mere athletic sports. Besides, this section is penal, and therefore to be strictly construed. Howell v. Stewart, 54 Mo. 400; Fusz v....