Ex Parte Walsh

Decision Date25 May 1910
Citation129 S.W. 118
PartiesEx parte WALSH.
CourtTexas Court of Criminal Appeals

Head, Dillard, Smith & Head, Lively, Nelms & Adams, and Wm. P. Ellison, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

On the 23d day of February of this year an original application was filed in this court for writ of habeas corpus. Our presiding judge made on same the following indorsement: "Clerk will file,—case set for Feby. 23, 1910; all necessary papers will be issued. Bail fixed at $500.00. Bond to be taken by sheriff of Grayson County for applicant's appearance before Court of Criminal Appeals." The record shows that on February 1, 1910, information was filed against appellant in the county court of Grayson county charging, in substance: "First. That said Jack Walsh did then and there (on February 1st, 1910, in Grayson county) take and accept the sum of ten dollars from Y. R. Allen, and agreed to and did transmit the same by the Western Union Telegraph Company, the same being a telegraph company, to one R. L. Allison, at Tulsa, in the state of Oklahoma, there to be bet and offered to bet, and did bet, the same with the said Allison on a horse race to be run at Juarez, in the Republic of Mexico, on said day, wherein a horse named `Knight Deck' was entered, and offered to bet, and did bet and wager, said ten dollars against a similar sum of money with the said Allison that the said horse named `Knight Deck' would win said race. Second. That the said Jack Walsh did then and there (on February 1st, 1910, in Grayson county) take and accept the sum of ten dollars from Y. R. Allen and agreed to and did transmit the same by the Western Union Telegraph Company, the same being a telegraph company, to one R. L. Allison at Tulsa, in the state of Oklahoma, there to be bet and offered to be bet, and did bet the same with the said Allison on a horse race to be run at Juarez in the Republic of Mexico, on said day, wherein a horse named `Knight Deck' was entered, and offered to bet, and did bet and wager, said ten dollars against a similar sum of money with the said Allison that the said horse named `Knight Deck' would win the race, against the peace," etc. The application for writ of habeas corpus is based on the proposition that applicant's arrest and detention under this charge is in contravention of law, for that in effect the law under which the offense was charged was invalid and unconstitutional. The act (Laws 1909, c. 45) in question, together with the caption thereof, is as follows:

"An act to prohibit the buying and selling of pools or receiving or making bets on horse racing; to prohibit the leasing of premises for pool rooms, and to provide a penalty for its violation and to repeal the act approved May 2, 1905, and published and known as chapter CLXV of the Laws of the Regular Session of the Twenty-Ninth Legislature entitled `An act to amend sections 1, 2, and 3 and adding thereto sections 4 and 5 of chapter L of the General Laws of Texas passed at the regular session of the Twenty-Eighth Legislature entitled "An act to prohibit the buying and selling of pools, or receiving or making bets on horse racing; to prohibit leasing premises for pool rooms; and to provide a penalty for its violation"; prohibiting horse racing and betting on horse racing on Sunday,' and providing a conviction may be had upon the unsupported evidence of an accomplice or participant, and exempting such witness from prosecution."

"Be it enacted by the Legislature of the state of Texas:

"Section 1. That from and after the passage of this act it shall be unlawful for any person, association of persons or any corporation, to at any place in this state, engage or assist in pool selling or book making on any horse race or by means of pool selling or book making, to take or accept any bet or aid any other person in betting or taking or accepting any bet upon any horse race to be run, trotted or paced in this state.

"Sec. 2. That it shall be unlawful for any person or association of persons or any corporation, at any place in this state by pool selling or book making or by means of telegraph, telephone or otherwise to aid or assist any other person in wagering, betting or placing a bet or in offering to wager, bet or place a bet of anything of value on any horse race to be run, trotted, or paced at any place in this state or elsewhere.

"Sec. 3. It shall be unlawful for the owner, agent or lessee of any property in this state to permit the same to be used as a place for selling pools or book making or wagering or receiving or assisting any person in placing any bet of or in receiving or transmitting any offer to bet anything of value on any horse race to be run, trotted or paced at any place in this state or elsewhere.

"Sec. 4. That any person violating any one of the provisions of sections 1, 2 or 3 of this act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than two hundred dollars, nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than ninety days. And any corporation holding a charter, or foreign corporation holding a permit to do business in this state, which shall violate any of the provisions of sections 1, 2 or 3 of this act shall thereby forfeit its charter or permit to do business in this state, as the case may be, and in addition thereto shall be liable to the state for a penalty of not less than two hundred nor more than five hundred dollars, and the person or persons acting for said corporation in the violation of any of the provisions of either of said sections, shall upon conviction be punished by a fine of not less than two hundred nor more than five hundred dollars, and by imprisonment in the county jail for not less than thirty days, nor more than ninety days.

"Sec. 5. If any person shall, at any place in this state, buy pools or otherwise wager anything of value on any horse race to be run, trotted or paced, at any place in this state or elsewhere, or shall offer to wager, or shall offer to place any money or other thing of value with any other person to be transmitted to any other place to be wagered on any such horse race, he shall upon conviction be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars.

"Sec. 6. A conviction for the violation of any of the provisions of this act may be had upon the unsupported evidence of an accomplice or participant, and such accomplice or participant shall be exempt from prosecution for any offense under this act about which he may be required to testify.

"Sec. 7. That the act approved May 2, 1905, and published and known as chapter CLXV of the General Laws of the Regular Session of the Twenty-Ninth Legislature, entitled, `An act to amend sections 1, 2 and 3 and adding thereto sections 4 and 5 of chapter L of the General Laws of Texas passed at the regular session of the Twenty-Eighth Legislature, entitled "An act to prohibit the buying and selling of pools, or receiving or making bets on horse racing; to prohibit leasing of premises for pool rooms; and to provide a penalty for its violation," prohibiting horse racing and betting on horse racing on Sunday,' be and the same is hereby repealed."

This contention is based substantially on these propositions: "First. That the offer of a bet on a horse race, the offering to place money with others to be transmitted to be placed or offered on a horse race, are all matters and subjects not embraced or expressed in the title to the act of 1909 (chapter 45, Acts 31st Leg.). Second. That, even if such subjects as mentioned in the foregoing proposition are to be considered as germane to the subject expressed in the title, yet the proper construction of the act limits its provisions to acts wholly committed within this state, and such provisions do not include or extend to interstate transactions. Third. That the act is discriminatory in character, and seeks to impose a greater penalty on one party to a joint transaction than on the other, or otherwise discriminates between parties involved in the same transaction, contrary to the provisions of the fourteenth amendment to the Constitution of the United States. Fourth. That the act is void because it fails to designate what acts constitute pool selling or book making. Fifth. That the act is void because so vague and indefinite as to be incapable of intelligent interpretation. Sixth. That the entire act should be declared unconstitutional because it is manifest that the Legislature would not have enacted the same but as an entirety, and, even though some constitutional provisions may be found therein, those complained of as unconstitutional are so inseparably connected with the others that the whole act must fall." It is well settled in this state that the writ of habeas corpus is not available as a means of effecting the purposes of an appeal, writ of error, certiorari, or supersedeas. Ex parte Scwartz, 2 Tex. App. 74; Perry v. State, 41 Tex. 488; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076. It is also well settled that the writ of habeas corpus is not available to test the sufficiency of a complaint. Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645; Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369. Unless, therefore, it could be held that the law on which the prosecution is based is invalid, the application should be refused. On this question, after a careful examination, we have become convinced that none of the objections to the law urged are valid.

Our Assistant Attorney General, Hon. Jno. A. Mobley, has filed in the case a brief so well supported by authorities, so conclusive in its reasoning, and so thorough in treatment that we here adopt it as the opinion of the court. It is as follows:

"Relator brings writ of...

To continue reading

Request your trial
6 cases
  • Ex Parte Flake
    • United States
    • Texas Court of Criminal Appeals
    • October 11, 1911
    ...and prohibition of the liquor traffic in territory where it has been prohibited. For a discussion of this question, see Ex parte Walsh, 59 Tex. Cr. R. 409, 129 S. W. 118, and authorities It is also contended that the act is violative of our Constitution, in that it deprives the citizens of ......
  • Davis v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 5, 1920
    ...v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736; Ex parte Walsh, 59 Tex. Cr. R. 415, 129 S. W. 118; Joy v. City of Terrell (Civ. App.) 138 S. W. Unless it appears that the act in question comprehends legislation incongruou......
  • Ex Parte Faison
    • United States
    • Texas Court of Criminal Appeals
    • February 14, 1923
    ...26 S. W. 407; Ex parte Hernan, 45 Tex. Cr. R. 346, 77 S. W. 225; Joliff v. State, 53 Tex. Cr. R. 63, 109 S. W. 176; Ex parte Walsh, 59 Tex. Cr. R. 415, 129 S. W. 118. Giving effect herein to these decisions and the mandates of our Constitution, we are compelled to hold section 3 of said cha......
  • Tarlton v. State
    • United States
    • Texas Court of Appeals
    • June 6, 2002
    ...not violate equal protection. The Texas Court of Criminal Appeals considered and rejected appellant's argument in Ex parte Walsh, 59 Tex.Crim. 409, 129 S.W. 118 (1910). In Walsh, the court held that a statute imposing a different punishment for individuals than for corporations did not viol......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT