People v. Sponsler

• Decision Date: 30 June 1876
• Citation: 46 N.W. 459,1 Dak. 289
• Parties: People v. Sponsler.
• Court: South Dakota Supreme Court

46 N.W. 459

1 Dak. 289

People

v.Sponsler.¹

Supreme Court of the Territory of Dakota.

June, 1876.

Error to district court, Yankton county.G. C. Moody, for defendant. J. R. Gamble, Dist. Atty., for the People.

SHANNON, C. J.

At the April term, 1876, of the district court for Yankton county, the plaintiff in error was indicted for that on the 16th day of April, 1876, at the city of Yankton, in the county of Yankton, he did, for gambling purposes, unlawfully keep and exhibit a gambling table upon which to bet money, against the peace and dignity of the people of the territory of Dakota, and contrary to the form of the statutes in such case made and provided. He demurred to the indictment, and specified as the ground of objection thereto that the said court had no jurisdiction of the subject-matter thereof. The demurrer was overruled, whereupon the defendant excepted, and a bill was signed and filed. Afterwards the defendant, having elected not further to plead, but to stand upon his demurrer, moved the court to arrest the judgment, upon the ground- First, that the court had no jurisdiction over the subject of the indictment; second, that the facts stated in the indictment did not constitute a public offense. The motion to arrest judgment was refused, and to this order the defendant excepted, and a bill was filed. Final judgment was then pronounced that the defendant pay a fine of $100, and, in default of payment, be imprisoned. The Penal Code contains a chapter of 16 sections, upon the subject of “gaming.” The first section of the chapter (being section 385 of the Code) declares that “it is unlawful to maintain or keep any table, cards, dice, or any other article or apparatus whatever, useful or intended to be used in playing any game of cards or faro, or other game of chance, upon which money is usually wagered, at either of the following places.” Here follows, in four subdivisions, a specification of the places and buildings. The next section (386) declares that “every person who knowingly violates the last section is guilty of a misdemeanor.” Section 387 prescribes that “every article or apparatus maintained or kept in violation of section 385 is a common and public nuisance.” Passing over the intervening sections as not particularly important to the present inquiry, we come to the consideration of section 393. This long section, when analyzed according to its disjunctives, as to its first clause, will read thus: “Every person who, for gambling purposes, keeps or exhibits any gambling table, establishment, device, or apparatus, *** is deemed a common gambler, and is punishable as for a misdemeanor.” Section 394 authorizes the seizure of any such table or apparatus, found in the possession of the person arrested, and enjoins it to be delivered to the magistrate, who, by the next section, may either cause it to be destroyed, or may deliver it to the district attorney. Section 396 requires the district attorney, in this latter event, and upon conviction of the accused, to cause the gambling apparatus to be destroyed. By section 398 it is made “the duty of all sheriffs, police officers, constables, and prosecuting or district attorneys, to inform against and prosecute all persons whom they have credible reason to believe are offenders against the provisions of this chapter; and any omission so to do is punishable by a fine not exceeding five hundred dollars.” Pen. Code Jan. 11, 1865. At this point it may be observed that the keeping of a common gaming house was indictable at the common law. In People v. Jackson, 3 Denio, 101,Bronson, C. J., said: “I have no doubt that the keeping of a common gaming house is indictable at the common law.” See, also, People v. Sergeant, 8 Cow. 140. In Russell on Crimes (volume 1, p. 299) it is said that gaming houses are nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices. Again, in pages 318-325, disorderly inns, bawdy houses, and common gaming houses are ranked among nuisances. In Bishop on Statutory Crimes, § 546, in relation to nuisances at the common law, it is said (quoting from Gabbett) that “all disorderly inns or ale houses, bawdy houses, gaming houses, *** and the like, are public nuisances, either by reason of their endangering the public peace, or as they affect public morals, or perhaps as being productive of idleness, or attended with public inconvenience.” Again, the keeping of a common gaming house is indictable at common law, on account of its tendency to bring together disorderly persons, to promote immorality, and to lead to breaches of the peace. U. S. v. Ismenard, 1 Cranch, C. C. 150; U. S. v. Dixon, 4 Cranch, C. C. 107; U. S. v. Milburn, Id. 719; U. S. v. Ringgold, 5 Cranch, C. C. 378; U. S. v. Milburn, Id. 390. Most of modern criminal statutes either confirm or enlarge commonlaw offenses. It would seem that sections 385 and 392 of our Penal Code, in connection with sections 395 and 396, are, in substance, declaratory of the common law; while section 393, with what follows, is merely an enlargement of the commonlaw offense. For, to repeat, if a person, for gambling purposes, keeps or exhibits any gambling table, he is deemed a common gambler, which is a conclusion of law, and he is punishable as for a misdemeanor. What next follows? The gambling table must, if seized, be totally abated by its destruction, in the same manner in which any public nuisance may be abated. See, on this point, sections 1956, 1959, and 1960 of the Civil Code.

But, however all this may be, it is contended by the plaintiff in error that section 393 of the Penal Code of January, 1865, in relation to “gaming,” has been impliedly repealed by the statute of January 10, 1873, it being “An act concerning gambling,” because the new law covers all possible cases that could occur under the old law. Let us examine the new enactment. It declares “that it shall be unlawful for any person or persons to keep or exhibit any table or gambling apparatus of any kind or description, on which to bet money or property of any kind, in the territory of Dakota.” But the first clause of the old statute is almost identically the same It makes it unlawful for every person to keep or exhibit any gambling table, establishment, device, or apparatus; but, with more fairness and precision, it has the additional words, “for gambling purposes.” The superadded words of the new law, to-wit, “ on which to bet money or property of any kind,” do not give more clearness or strength than the other words, “for gambling purposes.” The former expression, indeed, rather tends to becloud the sense than to afford lucidity. Section 1, therefore, of the new law is but an awkward paraphrase of the first clause of section 393 of the old Code. The two enactments do not antagonize. They convey the same substantial meaning. But there are other important clauses in section 393. The second one relates chiefly to faro. It runs thus: Every person who “is guilty of dealing ‘faro,’ or banking for others to deal ‘faro,’ or acting as ‘lookout’ orgamekeeper for the game of ‘faro,’ or any other banking game where money or property is dependent upon the result, *** is deemed a common gambler, and is punishable as for a misdemeanor.” The third clause is in regard to a different subject. It reads thus: Every person “who sells or vends what are commonly called lottery policies, or any writing, card, paper, or document in the nature of a bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery, or indorses a book or any other document for the purpose of enabling others to sell or vend lottery policies, is deemed a common gambler, and is punishable as for a misdemeanor.” With this accurate analysis in view, what is there, then, in section 1 or any other part of the new statute, that comes in conflict with section 393 of the Penal Code? It is quite true that a subsequent statute, inconsistent with or repugnant to a former one, repeals it by implication; and that, when a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals them, without any express repealing clause. In U. S. v. Tynen, 11 Wall. 88, it was held that a subsequent statute, on the same subject, which embraces all the provisions of a former one, and also new provisions, and imposes different or additional penalties, operates as a repeal of the former act, without any repealing clause. But a statute is not repealed by a subsequent one, unless the latter use apt and appropriate words for that purpose, or unless there be such a direct and absolute repugnancy between them that both cannot stand together. This new act (section 6) merely repeals all acts and parts of acts in conflict with it. Everything else in the Penal Code must stand, and what remains must be construed together. The punishment under the Code for keeping and exhibiting a gambling table, for gambling purposes, was by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $500, or by both such fine and imprisonment. The punishment under the new act is by imprisonment in the county jail for not less than five nor more than twenty days, or by fine not less than $15 nor more than $100, to which is added a forfeiture of all furniture or movable apparatus within the establishment. It is clear that if a new statute provides a milder punishment than was before imposed for the same offense, it repeals so much of the old law as concerns the punishment. It follows, therefore, that, while the punishment is altered, section 1 of the act of January 10, 1873, is but a general, substantial enunciation or confirmation of the old law as contained in the first clause of section 393, the two enactments being almost identical, and bearing the same meaning; while the other clauses of that section remain intact and unrepealed.

The next inquiry is, do the facts stated...