Fleming v. Wengler

• Decision Date: 21 December 1916
• Docket Number: No. 19988.,19988.
• Parties: FLEMING v. WENGLER, Constable.
• Court: Missouri Supreme Court

190 S.W. 875

269 Mo. 366

FLEMING v. WENGLER, Constable.

No. 19988.

Supreme Court of Missouri. In Banc.

December 21, 1916.

Habeas corpus by Edward J. Fleming against J. J. Wengler, Constable of Central Township of St. Louis. Petitioner remanded, and application for writ dismissed.

T. J. Rowe and Thos. J. Rowe, Jr., both of St. Louis, for petitioner. John T. Barker, Atty. Gen. (Kenneth C. Sears, Asst. Atty. Gen., of counsel), for respondent.

BOND, J.

I. The petitioner, who is in custody under a warrant issued by a justice of the peace upon a charge of violating section 4749 of the Revised Statutes of 1909, sued out a habeas corpus in this court praying for his discharge. The statute under which the petitioner was arrested, so far as it need be quoted, is, to wit:

"Or any person who becomes the custodian or depository of any money, bet or wager or to be bet or wagered, upon 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 * * * shall, on conviction, be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years, or by imprisonment in the county jail for a term of not less than six months or more than one year, or by a fine of not less than $500, or by both such fine and imprisonment." Laws 1907, p. 232, now R. S. 1909, § 4749.

It was stated in the affidavit for the warrant that two persons made a bet with each other of $5 apiece on the result of a horse race in St. Louis county, and that petitioner knowingly became custodian of the $10 so wagered, thereby committing a felony. The mere act of two persons betting privately with each other on the result of a horse race is gambling, but the offense is only a misdemeanor, and not a felony. Ullman v. St. L. Fair Ass'n, 167 Mo. loc. cit. 283, et cases cited, 66 S. W. 949, 56 L. R. A. 606.

The section under review was presented to this court in State v. Cummings, 248 Mo. 509, 154 S. W. 725, where it was held that the term "custodian" embraced all persons who received and held money as the stakeholder of bets laid upon the result of a horse race, as the affidavit shows was done by petitioner. Unless, therefore, the act under review was illegally enacted, the petitioner must be remanded to the custody of the officer who held him in charge under the process issued by the justice of the peace, although to do so presents the singular incongruity of an intention on the part of the Legislature to make the stakeholder of two bettors guilty of a felony in so doing, whereas the principals who made the bet were only guilty of a misdemeanor; for it has been distinctly held by Judge Gantt, in State v. Oldham, that when the Legislature enacted an anti-bookmaking law similar to this, it had no intention to prohibit "even betting on horse races, but intended to prohibit" the evils of pool selling and bookmaking and the maintenance of gambling houses, with books, devices, and paraphernalia to accomplish those purposes. State v. Oldham, 200 Mo. loc. cit. 555, 556, 98 S. W....