Shumate v. Commonwealth
| Decision Date | 13 February 1860 |
| Citation | 56 Va. 653 |
| Parties | SHUMATE v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. The 10th section of chapter 198 of the Code, in relation to betting on elections, is to be construed as a remedial statute.
2. The 20th section of chapter 198 of the Code applies to all the preceding sections of that chapter.[a1]
3. A short time before the election of county officers for A to be made in May 1858, M sold to S a wagon at the price of one hundred and fifty dollars, and worth that sum, to be paid by S when K, one of the candidates for the office of county court clerk at said election, should be elected to that office, and not at all, if he was not elected; and S at the time of said sale put up his check agreeably to that understanding; and upon these terms took possession of the wagon. HELD:
1. This is a wager on the part of both M and S, within the meaning of the Code, ch. 198, § 10, p. 744.[d1]
2. Both M and S are liable to a fine not exceeding the amount that either might lose.[d1]
This was an indictment for betting on an election, in the Circuit court of Augusta county. The facts are fully stated in the opinion of Judge ROBERTSON.
Imboden, for the appellant.
The Attorney General, for the commonwealth.
Joseph T. Mitchell and William J. Shumate were jointly indicted, at June term 1858, in the Circuit court of Augusta, for a violation of the law prohibiting betting on elections.
The defendants having elected to be tried separately, an issue was made up as to the defendant Shumate, upon the plea of " not guilty," and a jury sworn. Upon the trial it was proved that a short time before the election of county officers for Augusta, to be made in May 1858, Joseph T Mitchell sold to the defendant Shumate a wagon, at the price of one hundred and fifty dollars, to be paid by the defendant when Jefferson Kinney, one of the candidates for the office of County court clerk, at said election, should be elected to that office, and not at all, if he was not elected: and that the defendant at the time of said sale put up his check agreeably to that understanding, and upon those terms took possession of the wagon. The witness who proved these facts further stated that he was under the impression that at the time of the sale, Mitchell remarked that the wagon had cost him one hundred and thirty dollars. The witness himself was of the opinion that it was fully worth that sum, and perhaps as much as one hundred and fifty dollars, to any one who needed such a wagon.
The defendant then introduced a witness, who proved that he was a master mechanic and contractor, and thought he was well acquainted with the value of such a wagon as that which the defendant had purchased from Mitchell; that he had seen and examined the identical wagon in question, and regarded it, at the time the defendant got it from Mitchell, as fairly worth one hundred and fifty dollars in money.
This being all the evidence, the case was argued before the jury and then the defendant, by his counsel, moved the court to give the jury the following instructions, to wit:
" 1st. A bet implies risk in both parties; and where one person sells another property at a fair valuation, to be paid for when a particular candidate shall be elected, it is not a wager, within the meaning of the act of assembly under which this prosecution is had; therefore, if the jury believe from the evidence in this case, that the wagon sold by Joseph T. Mitchell to the defendant, was worth one hundred and fifty dollars, they must find the defendant not guilty.
2d. Under section 10 of chapter 198 of the Code, the limit of the fine to which a party can be subjected for a violation of said section, is the amount or value of such money or other thing bet or wagered by him; and therefore, if the jury believe that the defendant purchased property at more than its fair valuation, to be paid for when a particular candidate was elected, then the amount so bet or wagered by him was the difference between a fair valuation of the property so purchased and the price at which it was sold, and the jury cannot impose a fine of greater amount than such difference in value and price.
3d. The act under which this prosecution is had, must be construed as a penal and not a remedial statute."
But the court refused to give said instructions. To which opinion of the court the defendant excepted: and the jury having found him guilty, and assessed his amercement at one hundred and thirty dollars, he moved the court to set aside the verdict and grant him a new trial, on the ground that said verdict was contrary to the law and the evidence of the case; but the court overruled the said motion: to which ruling of the court he again excepted. And judgment having been entered in conformity with said verdict, a writ of supersedeas has been awarded from this court, on the petition of said Shumate, who assigns as matters of error, the refusal of the court to give the three several instructions prayed for as above stated.
The question which it will be most convenient to consider first, is, whether the act, under which the prosecution was had, is to be construed as a penal or as a remedial statute. The 20th section of chapter 198 of the Code provides, that " All laws for suppressing gaming, lotteries, unchartered banks, and the circulation of bank notes for less than five dollars, shall be construed as remedial."
The question under consideration is, therefore, narrowed to the enquiry, whether the act prohibiting betting on elections is a law " for suppressing gaming," within the meaning of the 20th section; which, as it changes the rule of interpretation prescribed by the common law in reference to penal statutes, must itself be construed strictly.
Under a strict construction of this section, and on the authority of Chubb's Case, 5 Rand. 715, it might well be doubted whether we would be justified in coming to the conclusion that the law against betting on elections is embraced by the general words " all laws for suppressing gaming," were it not for the light which is thrown on the subject by the history of the legislation respecting it, and by the table of contents prefixed to chapter 198 of the Code, and the captions to the sections of that chapter.
Our first statute against betting on elections was passed in the year 1840. Acts 1839-40, ch. 21, p. 30. It declared that any person violating it should " " " be guilty of unlawful gaming. " The offence was of course thus brought within the operation of the act providing that all laws against gaming should be construed remedially.
In the revisal of the criminal code, made in 1848, the provision against betting on elections is to be found in the chapter relating to offences against public policy, and is in the following words:
" Any free person who shall bet or wager any money or other thing over the value of five dollars upon any election or appointment to any office or place, to be made under authority of the constitution and laws of this state, or of the United States, shall be deemed guilty of unlawful gaming, and be punished by fine not exceeding the value of the money or thing so bet or wagered." Acts 1847-8, ch. 10, § 11, p. 115.
The revisors, in their report, follow the whole of this chapter very closely, adopting not only, for the most part, its provisions, but adhering to the same arrangement of the subjects. Wherever any substantial alteration is proposed, attention is generally called to it by means of a note; but the phraseology of most of the sections is changed by them for the sake, it would seem, of brevity and supposed clearness.
The 11th section above quoted is, in the report, made the 10th section of the chapter, and is to be found there in the following words:
" If a free person bet or wager money or other thing over the value of five dollars, on any election or appointment to any office or place, to be made under the law, he shall be fined not exceeding the value of such money or other thing."
No note, indicating that any change in the law was designed, is appended.
The committee of revision proposed to amend the section, by striking out the words " the law," and inserting, in their place, the words " authority of the constitution and laws of this state or of the United States." This amendment was adopted by the legislature, so that the section as now to be found in the Code, is in the following words:
" If a free person bet or wager money or other thing over the value of five dollars, on any election or appointment to any office or place to be made under authority of the constitution and laws of this state or of the United States, he shall be fined not exceeding the value of such money or other thing."
The fair presumption is, that the words " shall be...
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