State v. Cowen

• Citation: 3 N.W.2d 176,231 Iowa 1117
• Decision Date: 07 April 1942
• Docket Number: 45879.
• Parties: STATE v. COWEN.
• Court: Iowa Supreme Court

3 N.W.2d 176

231 Iowa 1117

STATE v. COWEN.

No. 45879.

Supreme Court of Iowa

April 7, 1942

John M. Rankin, Atty. Gen., Jens Grothe, Asst Atty. Gen., and Francis J. Kuble, Co. Atty., and James P Irish, Asst. Co. Atty., both of Des Moines, for appellant.

Ralph N. Lynch and Harry B. Grund, both of Des Moines, for appellee.

HALE Justice.

On October 10, 1941, the grand jury of Polk county returned an indictment against the defendant, Louis J. (Louie) Cowen, for illegal possession of gambling devices, which indictment recited that the defendant was accused of "Illegal Possession of Gambling Devices as defined in Section 13210 of the 1939 Code of Iowa, and charge that Louis Cowen had kept or held in his possession or under his control certain punch boards, slot machines and other machines used for gambling and devices with an element of chance attending such operation." Later the defendant demurred to said indictment. The demurrer is lengthy, covering over seven pages of the abstract. The demurrer, under ground 1, specifically assails the indictment and states as reason therefor, "that when Section 13210 of the Code of Iowa, 1939, was enacted by the Legislature as Section 1, Chapter 179, Acts of the 34th General Assembly of Iowa, the title of said act and Section 2 thereof provided a specific penalty for the violation of Section 1, that is, the seizure and destruction of the goods declared illegal and said penalty is in full force and effect, * * *," and therefore the provisions of section 12893 of the Code would not apply; that to attempt to apply the provisions of said section 12893 to violations under section 13210 would be in violation of the laws of Iowa, and particularly, such an interpretation would be unconstitutional and in violation of section 29, article III of the Constitution of the state of Iowa, providing that every act shall embrace but one subject and matters particularly connected therewith which subject shall be expressed in the title. The second ground of the demurrer avers that: "Said indictment does not substantially conform to the requirements of the Laws of the State of Iowa of 1939, which was never enrolled and passed as a whole by any General Assembly of said State, for all of the reasons expressed in paragraph one and specifically above set forth." The demurrer then recites the history of section 13210 of the Code, setting out the various provisions and amendments thereto. In substance, the demurrer charges: First, that the indictment contained matter which, if true, would constitute a legal defense or bar to the prosecution; and, second, that the indictment does not substantially conform to the requirements of the laws of the state of Iowa, or the compilation thereof known as the Code of 1939. No application for a bill of particulars, under section 13732.04, was made to the indictment, nor was there any objection made as to any constitutional infringement of defendant's rights, except as to section 29, article III, of the State Constitution, hereinafter referred to. On November 3, 1941, it was ordered by the court that the demurrer be sustained and the case as to the defendant dismissed. Defendant's bond was exonerated and he was released.

We may consider the Code sections referred to in the demurrer. The indictment was brought under the provisions of section 13210, which is found in chapter 593 of the Code, relating to gambling, and is as follows: "13210 Possession of gambling devices prohibited. No one shall, in any manner or for any purpose whatever, except under proceeding to destroy the same, have, keep, or hold in possession or control any roulette wheel, klondyke table, poker table, punch board, faro, or keno layouts or any other machines used for gambling, or any slot machine or device with an element of chance attending such operation." This statute appeared in the Laws of the Thirty-fourth General Assembly, chapter 179, and consisted of two sections, the first of which prohibited having, keeping, or holding in possession or control certain gambling devices; the second section provided for their seizure, for hearing, and order for destruction. The title of the Act was: "An act to prohibit the possession of roulette wheels, klondyke tables, poker tables, faro, and keno layouts, and to provide for the seizure and destruction thereof." It thereafter appeared in the Code Supplement of 1913, section 4965-a, and, without substantial change, was carried into the Code of 1924, becoming section 13210, prohibiting possession, and sections 13211 to 13215, inclusive, referring to search warrant and procedure thereunder. Thereafter, section 13210 was variously amended, and appears in the Code of 1939 as above set out. Most of the statutory requirements for seizure and confiscation now appear under the general search-warrant provisions of chapter 617 of the Code of 1939. There is a provision under section 13441.03 providing that search warrant may issue, among other things, for property of the character specifically enumerated in section 13210. Sections 13211 to 13215, inclusive (section 2 of the original act), were repealed by section 45, chapter 125, Acts of the Forty-sixth General Assembly, at the adoption of the new general search-warrant law.

Defendant argues that since the Code as it now stands contains substantially the provisions of the original act, the original penalty intended by the legislature when chapter 179 of the Laws of the Thirty-fourth General Assembly was enacted-- that is, the seizure and destruction of the prohibited property--is still in existence and force and effect today, and this constitutes the only penalty, and therefore the court did not err in sustaining the first ground of the demurrer that the indictment contained matter which, if true, would constitute a legal defense or bar to the prosecution; that the legislature has never provided for any indictable offense in connection with the possession of the prohibited property, and therefore, the general penalty for misdemeanors does not apply. The State insists that the penalty for the offense charged in the indictment is covered by section 12893 and section 12894. Section 12893 provides: "When the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor."

Section 12894 provides for punishment for misdemeanors, and is as follows:

"Every person who is convicted of a misdemeanor, the punishment of which is not otherwise prescribed by any statute of this state, shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment." The point of difference, therefore, between the contentions of the defendant and of the State is as follows: Is the seizure and forfeiture of the prohibited articles a penalty for the violation of section 13210? If it is such penalty, then the prohibited act would not be punishable under the provisions of section 12894. But if, as claimed by the State, it is not a penalty for the possession and control of the prohibited articles, then such possession and control become a misdemeanor punishable under the general provisions of the law as found in section 12894.

We will take up the first claim of defendant, that the seizure and confiscation provided in section 2 of the original act constituted the specific penalty, and the only penalty, for the violation of section 1, and that this was not an offense where "no penalty for the violation of such statute is imposed"; therefore, such possession would not constitute a misdemeanor punishable under Code section 12894, by imprisonment or fine, but was punishable only by forfeiture of the outlawed device, and that the legislature, since section 12893 does not apply, has not provided any other punishment than forfeiture. Assuming, only for the purpose of consideration of this part of defendant's argument, that the original procedure for seizure of slot machines still stands as part of the act, and applies, our first inquiry should be: Does section 2 of the original act providing for seizure and confiscation, constitute a punishment or penalty within the meaning of Code section 12893?

It is plain that to be a punishment there must be a deprivation of property, or of some right, such as the enjoyment of liberty; and the same may be said of a penalty. For instance, a revocation of a license following a conviction is not a "punishment." "There is a plain distinction between such a withdrawal of a special privilege which has been abused, the termination of a mere license, and the penalty which the law imposes as a punishment for crime." State v. Harris, 50 Minn. 128, 52 N.W. 387, 388, 531, citing State v. Larson, 40 Minn. 63, 41 N.W. 363. Sometimes the words "forfeiture," "penalty," and "punishment" are used as synonymous. Some cases so hold, and other cases make a distinction. But it is not necessary here to make these distinctions or set out the various shades of meaning that have been given the words, or to criticize or analyze the definitions. They are not synonymous in all cases and under all circumstances.

Defendant cites Gosselink v. Campbell, 4 Iowa 296, 300: "The terms, fine, forfeiture, and penalty, are often used loosely and even confusedly. But when a discrimination is made, the word 'penalty' is found to be generic in its character, including both fine and forfeiture. A fine is a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. A 'forfeiture' is a penalty by which one loses his rights and interest in his property." Defendant cites also, as defining "fine" and "forfeiture," various cases noted in Words and...