James v. State

• Decision Date: 14 December 1910
• Citation: 113 P. 226
• Parties: JAMES et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

113 P. 226

JAMES et al. v. STATE.

Court of Criminal Appeals of Oklahoma

December 14, 1910

Syllabus by the Court.

It was the purpose of the Legislature in adopting section 2422 Snyder's Comp. Laws Okl. 1909, to effectually suppress the keeping of every kind of public gaming house, room, or place in the state of Oklahoma; not only those then in existence, but also those that might subsequently be devised and practiced.

The words "or any device," used in said section include every scheme, plan, or conception by which the person who conducts such house, room or place for betting, induces and enables the public to bet or lay wagers upon any kind of game whatsover.

The word "gaming" has no technical meaning, but includes every contrivance or institution which has for its object any sport, recreation, or amusement for the public upon which money or any other article of value can be won or lost by the result of such contrivance or institution.

"Gaming" includes bets or wagers made upon any physical contest whether of man or beast, when practiced for the purpose of deciding such bets or wagers.

Betting on a horse race is gaming within the meaning of the law. If any person opens or conducts a house, room, or place where the public are invited to assemble and by means of any plan device, or scheme bet or lay wagers upon the results of horse racing, such persons are guilty of violating section 2422, Snyder's Comp. Laws Okl. 1909.

Section 2422, Snyder's Comp. Laws Okl. 1909, does not provide for the punishment of those who bet or lay wagers upon any game or any device for gaming; but its penalties are alone for those who open and conduct places where the public can assemble, and where they are invited and afforded an opportunity to bet and lay wagers upon any game or gaming device.

Appeal from Canadian County Court; H. L. Fogg, Judge.

E. P. James and others were convicted for conducting what was known as a "Turf Exchange" in the city of El Reno, in Canadian county, Oklahoma, in violation of section 2422 of Snyder's Compiled Laws of Oklahoma of 1909. E. P. James was sentenced to pay a fine of $300 and to be confined at hard labor in the county jail of Canadian county for a period of 30 days. Appellant C. E. Hilswick was sentenced to pay a fine of $100 and to be confined in the county jail of Canadian county for a period of 30 days at hard labor. Appellant Ollie James was sentenced to pay a fine of $100 and to be confined in the county jail of Canadian county for a period of 30 days at hard labor. Appellants appealed. Affirmed.

Libby & Gillette, for appellants.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

In this case appellants filed a demurrer to the information upon two grounds: First, that the information did not state facts sufficient to constitute the crime charged; second, that the allegations of the information show that the crime attempted to be charged is not a crime under the statutes of Oklahoma.

The information is as follows: "The State of Oklahoma, Canadian County--ss.: In County Court before H. L. Fogg, County Judge in and for said County and State. The State of Oklahoma v. E. P. James, Ollie James, C. E. Hilswick and Gale Pendleton. Now comes John W. Clark, county attorney, who prosecutes on behalf of the state, and gives the court to know and be informed that one E. P. James, Ollie James, C. E. Hilswick and Gale Pendleton late of the county of Canadian and state of Oklahoma, on or about the 30th day of March in the year of our Lord one thousand nine hundred and eight, at and within the said county and state, did then and there, maintain and conduct a gambling house in the manner and form as follows: That the said defendants E. P. James, Ollie James, C. E. Hilswick and Gale Pendleton, did then and there unlawfully conduct as owners and for hire a certain banking and percentage game, played with and by means of a certain device, to wit, a blackboard and telegraph connections, together with tickets with the names of the supposed horses and the amount wagered on them, or money, checks and other representatives of value. And the said defendants above named, did then and there conduct said gambling device in the manner and form aforesaid for money, checks and other representatives of value, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. John W. Clark, County Attorney."

This information was based on section 2422, Snyder's Comp. Laws Okl. 1909, which is as follows: "That every person who deals, plays or carries on, or opens or causes to be opened, or who conducts, either as owner or employé, whether for hire or not, any game of faro, monte, poker, roulette, craps, or any banking or percentage game played with dice, cards, or any device, for money, checks, credit, or any representative of value, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, and by imprisonment in the county jail for a term not less than thirty days nor more than six months." This section was included in a bill entitled "An act declaring gaming illegal, and providing penalties for violation thereof, and repealing article 35 of chapter 25 of the Statutes of Oklahoma entitled 'Gaming,"' which was passed by the Legislature of Oklahoma Territory in 1893. Sections 2426 and 2427, Snyder's Comp. Laws Okl. 1909, under the article of "Gaming," are as follows:

"Sec. 2426. Every person who shall permit any gaming table, bank, or gaming device prohibited by sections 2422 and 2424 of this act, to be set up or used for the purpose of gambling in any house, building, shed, shelter, booth, lot or other premises to him belonging, or by him occupied, or of which he hath, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor, and punished by a fine not exceeding two hundred dollars, nor less than one hundred dollars, or by punishment in the county jail for a term not exceeding six months nor less than thirty days, or by both such fine and imprisonment in the discretion of the court.

"Sec. 2427. Every person who shall knowingly lease or rent to another any house, building or premises for the purpose of setting up or keeping therein, any of the gambling devices prohibited by the preceding provisions of this act, is guilty of a misdemeanor."

Under the common-law doctrine of a strict construction of penal statutes, no act would constitute an offense unless it was necessarily included within the express letter of the statute, although it might be clearly contrary to the spirit of the statute. In other words, to construe a statute strictly was to construe it according to its letter, rather than according to its spirit. The doctrine of a liberal construction of penal statutes requires the courts, where it can be reasonably done, to place such a construction upon them as will enable the law to reach and destroy the mischief at which it was aimed.

In other words, the court must look to the spirit rather than to the letter of the law. This is in harmony with the Divine law which declares, "For the letter killeth, but the spirit giveth life." In the second edition of Lewis' Sutherland, Statutory Construction (volume 2, p. 1077), when speaking of the doctrine of a liberal construction of statutes, the author says: "The courts follow the reason and spirit of such statutes until they reach and destroy the mischief which the Legislature intended to suppress. In doing so they go far beyond the letter of the statute."

Under section 6489, Snyder's Comp. Laws Okl. 1909, we are forbidden to apply the common-law rule of a strict construction to the penal statutes of this state, and are required to construe such statutes liberally for the purpose of promoting their objects and in furtherance of justice. It is therefore our duty to determine, if we can, the intention of the Legislature in enacting section 2422, Snyder's Comp. Laws Okl. 1909. If we can reasonably do so, we must place such a construction upon this statute as will reach and destroy the mischief at which it was aimed. To our minds it is clear that it was the purpose of the Legislature, in enacting this section of our statutes, to make it an offense for any person to open and conduct a house or place where any kind of public gaming whatsoever was carried on. If there was any doubt upon this subject, when we consider the other portions of the act, this doubt will be removed. By reading sections 2426 and 2427 it will be seen that it was clearly the intention of the Legislature not to allow any gaming table, bank, or gaming device to be opened and conducted within the state.

Mr. Webster defines a "device" as follows: "That which is devised, or formed by conception, a contrivance, and invention, a project, a scheme, often a scheme to deceive, a stratagem, an artifice."

The information alleged that the defendants conducted a certain banking or percentage game, played with and by means of a certain device, to wit, a blackboard and telegraph connections, together with tickets with the name of the supposed horses and the amounts wagered on them, for money, checks, and other representatives of value. The substance of this information is that the blackboard and telegraph connections, together with tickets with the name of the supposed horses and the amounts wagered on them, constituted a device; that is, a plan or scheme which enabled people to bet or wager money upon such supposed horse races.

Counsel for the defendants say that there is no law in Oklahoma making it a crime to bet on horse races. They might with equal propriety have said that there is no law in Oklahoma subjecting a person who...