In re Dietrick

• Decision Date: 07 August 1903
• Citation: 32 Wash. 471,73 P. 506
• Parties: In re DIETRIC.
• Court: Washington Supreme Court

73 P. 506

32 Wash. 471

In re DIETRIC.

Supreme Court of Washington

August 7, 1903

Application of Fritz Dietrick for writ of habeas corpus. Writ denied.

Graves & Graves, for petitioner.

Horace Kimball, W. B. Stratton, E. W. Ross, and C. C. Dalton, for respondent.

HADLEY J.

The petitioner applied to this court for a writ of habeas corpus. The petition states substantially that the petitioner is restrained of his liberty by the sheriff of Spokane county in the county jail of said county, and that such restraint is because of the facts hereinafter stated. On June 16, 1903, an information was filed in the superior court of said county by the prosecuting attorney thereof, charging that the petitioner did on the 14th day of June, 1903, willfully unlawfully, and feloniously, conduct and carry on therein, as proprietor, a certain game of poker, commonly called 'stud poker,' the same having been played and operated for checks, said checks then and there being representatives of value, to wit, representatives of money, and that said game was played, carried on, and conducted in a certain room where persons resort for the purpose of playing the same. Thereafter the petitioner was brought before said court and required to plead to said information. He thereupon entered a plea of guilty, and on the 17th day of June, 1903, the court entered its judgment and sentence in the cause, finding petitioner guilty of the offense charged, and sentencing him as a punishment therefor to serve a term of one year in the state penitentiary. He was forthwith remanded to the custody of said sheriff, that said judgment and sentence might be carried into effect. The petition further avers that the petitioner is held upon no other charge or pretense than that above set forth. He admits that he has committed the offense charged in the information but says that the only punishment which can be imposed therefor is a fine, as provided in section 7260, 2 Ballinger's Ann. Codes & St. He avers that he so claimed and asserted to the said superior court at the time the sentence was pronounced, but that the court disregarded his protest and sentenced him to imprisonment in the penitentiary. He alleges that the said sheriff of Spokane county will in a short time proceed to carry out said sentence, and will commit him to the custody of the warden of the penitentiary, to serve out the term imposed by said court. He further says he has stood and now stands ready to pay a fine, and he prays that he may be delivered from illegal imprisonment, and that an order of final discharge shall be made herein. Upon the presentation of the petition here, it was ordered that a writ of habeas corpus should issue directed to the said sheriff of Spokane county. Such a writ was accordingly issued. The said sheriff filed his return, in which he set up the record of the judgment in the superior court, together with the commitment remanding the petitioner to his custody for the purpose of being delivered to the warden of the penitentiary. A hearing was thereafter had upon said petition and return.

The contention of the petitioner involves the constitutionality of an act of the Legislature of 1903. The act will be found in chapter 51, at pages 63 and 64, and the Session Laws of 1903, and is entitled as follows: 'An act to prohibit the maintaining of gambling resorts, declaring the same a felony, and prescribing a penalty therefor.' The act itself is as follows: 'Section 1. Any person who shall conduct, carry on, open, or cause to be opened, either as owner, proprietor, employee, or assistant, or in any manner whatever, whether for hire or not, any game of faro, monte, roulette, rouge et noir, lansquenette, rondo, vingt-un (or twenty-one), poker, draw-poker, brag, bluff, thaw, tan, or any banking or other game played with cards, dice or any other device, or any slot machine, or other gambling device, whether the same be played or operated for money, checks, credits, or any other representative or thing of value, in any house, room, shop, or other building whatsoever, boat, booth, garden or other place, where persons resort for the purpose of playing, dealing or operating any such game, machine or device, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for the period of not less than one nor more than three years.' The claim of the petitioner is that the act is invalid for the alleged reason that it is merely amendatory of a former act dealing with the same subject, and that as such it does not comply with section 37, art. 2, of the state Constitution, which provides that 'no act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.' The former act of which it is claimed the recent one is merely amendatory was passed by the territorial Legislature of 1879, and is entitled, 'An act to prevent and punish gambling.' Section 1 of that act is involved in the discussion here, and will be found at page 97 of the Session Laws of 1879, being also section 7260, 2 Ballinger's Ann. Codes & St. The section is as follows: 'Each and every person who shall deal, play, or carry on, open, or cause to be opened, or who shall conduct, either as owner, proprietor, employee, whether for hire or not, any game of faro, monte, roulette, rouge-et-noir, lansquenette, rondo, vingt-un (or twenty-one), poker, draw poker, brag, bluff, thaw, tan, or any banking or other game played with cards, dice, or any other device, whether the same be played for money, checks, credits, or any other representative of value, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars, and shall be imprisoned in the county jail until such fine and costs are paid: provided, that such persons so convicted shall be imprisoned one day for every two dollars of such fine and costs: and provided further, that such imprisonment shall not exceed one year: and still further provided, that any one who shall carry on any chuck-a-luck, bunko, strap, sling, panel house, or other swindling games shall be deemed guilty of a felony, and upon conviction shall be imprisoned in the penitentiary not exceeding five years for such offense.' The petitioner argues that the new act deals with the same subject as the above-quoted section of the former one, is merely amendatory thereto, and is invalid because it does not set forth at full length the former section as amended, as provided by the constitutional provision quoted above. The question, therefore, to be determined, is, does the new act come within the said constitutional requirement?

It will be seen that under the act of 1879 the carrying on and conducting of certain enumerated gambling games is made a distinct offense, as a misdemeanor. The new act, it is true deals with the subject of conducting and carrying on gambling games. It enumerates the same games that are named in the former act, to conduct which was a misdemeanor, and provides that the act of conducting and carrying them on shall be a felony, and punishable by imprisonment in the penitentiary when conducted 'where persons resort for the purpose of playing.' While the later act does in effect deal with the same subject as the former, yet it is complete and independent in itself. It in no way refers to any former law, and such reference is unnecessary in order to understand its full meaning. It clearly designates certain acts as felonies, and provides for their punishment. No further search is required to find the law on the particular subject of which the act treats. Being complete in itself, and in no way dependent upon any other statute to give it meaning or force, it stands alone as the law upon the particular subject of which it treats. As such, being the latest law on the subject, it repeals by implication all former statutory provisions in conflict with it. That a statute may in its effect modify or be in conflict with a former one because it deals with the same subject-matter...