State v. Gemmell
| Decision Date | 09 March 1912 |
| Citation | 122 P. 268,45 Mont. 210 |
| Parties | STATE v. GEMMELL. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Michael Donlan Judge.
Demurrer to indictment against William Gemmell was sustained, and the State appeals. Reversed.
Albert J. Galen, Atty. Gen., for the State.
W. B Rodgers, Frank & Cary, Davies & Lyon, and C. F. Kelley, for respondent.
On the 14th day of August, 1911, the county attorney of Silver Bow county filed an information in the district court of that county, against the above-named defendant, charging as follows: "That during 30 days in the calendar year A. D 1911, and before the 8th day of August, 1911, in the said county of Silver Bow, state of Montana, there had been bets and wagers made, reported, recorded, and registered upon the results of contests of speed, skill, and endurance of animals upon two certain inclosed race tracks both situated in Silver Bow county, Mont., to wit, 15 days upon the race track of the Butte Jockey Club and Fair Association, and 17 days upon the race track of the Butte Driving Club, and that each and all of said bets and wagers were made, and all acts done in making, reporting, and recording said bets and wagers were done, within the respective inclosures where the said contests were held and upon the same day the said contest was held, and that thereafter during the said calendar year 1911 to wit, on the 8th day of August, A. D. 1911, and before the filing of this information, at the said county of Silver Bow, state of Montana, the said defendant, William Gemmell, did willfully and unlawfully make a bet and wager of lawful money with one John Doe, upon the result of a contest of speed, skill, and endurance of animals, to wit, horses, which said contest was held upon the said race track of the Butte Jockey Club and Fair Association, then and there an inclosed race track." It will be noted that the information charges in effect that 32 days racing, upon which betting was allowed, had been had in Silver Bow county on inclosed race tracks, prior to the day on which the defendant is alleged to have laid a wager on the result of a horse race held upon the inclosed track of the Butte Jockey Club and Fair Association. The court below allowed a general demurrer to the information, for want of facts therein stated sufficient to constitute a public offense. The state appeals.
Did the court err in allowing the demurrer, which, under the peculiar practice in such cases, amounted to entering a judgment in favor of the defendant? Section 9203, Rev. Codes; People v. Long, 121 Cal. 494, 53 P. 1097. The question involved is whether it is unlawful to make a wager within an inclosed race track upon the result of a horse race held within the same inclosure, after 15 days racing has been had on one inclosed track, in a county of the first class, and 17 days racing on another such track, in the same county.
The Eleventh Legislative Assembly passed "An act to prohibit the reporting or recording or registering of any bet or wager upon the result of any contest of speed or skill or endurance of animal or beast, within certain limitations therein stated, and to limit the number of days when such bets or wagers may be recorded, reported or registered, and providing penalties for the breach of the same." The act provided:
Section 4 provided a penalty of fine and imprisonment for a violation of the act. See Laws of 1909, p. 22.
Subsequently, and at the same session of the Legislative Assembly, the act just quoted was amended by the passage of the act under which the respondent was prosecuted. Section 1 of the act as amended is the same as section 1 of the act before amendment, save that the words "make" and "making" are inserted therein before the words "or report" and "reporting," respectively; and section 2 as amended reads as follows: See Laws of 1909, p. 122.
It is contended by the Attorney General that the intent of the Legislative Assembly was to limit wagering on the results of contests of speed, in counties of the first class, to a period of 30 days; and that the construction to be placed upon the act should be such as to carry this intention into effect; otherwise the statute becomes nugatory. On the other hand, it is argued for the respondent that the statute is plain and unambiguous in its terms and requires no construction. Counsel contend that no question of public policy is involved; that the public...
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