State v. Green

• Decision Date: 24 September 1930
• Docket Number: 22432.
• Citation: 158 Wash. 574,291 P. 728
• Court: Washington Supreme Court
• Parties: STATE v. GREEN.

291 P. 728

158 Wash. 574

STATE v. GREEN.

No. 22432.

Supreme Court of Washington

September 24, 1930

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Irving Green was convicted of bookmaking, and he appeals.

Affirmed.

Trefethen & Porterfield and Mark M. Litchman, all of Seattle, for appellant.

Ewing D. Colvin and Ralph Hammer, both of Seattle, for the State.

FULLERTON J.

Irving Green was convicted of a crime denominated 'bookmaking' in the information filed against him and appeals from the judgment of conviction.

The information on which the appellant was convicted consists of four counts. In the first count, he was charged with the offense of being a common gambler. The second count reads as follows:

'And I, Ewing D. Colvin, Prosecuting Attorney aforesaid, do further accuse Irving Green of the crime of Bookmaking committed as follows, to-wit:

'He, said Irving Green, in the County of King, State of Washington, on or about the 23rd day of November, A. D. 1928, acting as agent for one Edward Melhart, did then and there wilfully, unlawfully and feloniously receive from said Edward Melhart money designed and intended to be bet, wagered and hazarded upon the result of a contest of skill, speed and endurance between men, to-wit, a football game.

'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'

The third and fourth counts in the information are identical in language with count 2, except as to dates and events; the dates being of a time subsequent to that stated in the second count, and the event in the one being a prize fight and in the other a boat race. The jury at the trial acquitted the appellant of the charge contained in the first count of the information, and convicted him on the other three.

The appellant interposed a demurrer to the information which the trial court overruled, and the first error assigned is based upon this ruling. The statute upon which the information is based is found at section 2473 of Remington's Compiled Statutes, and reads as follows:

'§ 2473. Poolselling and book-making.

'Every person, whether acting in his own behalf, or as an agent, servant or employee of another person within or outside of this state, who shall sell any pool, make any book, or receive, record, register, transmit or forward any bet or wager, or any money or property or thing of value designed or intended to be bet, wagered or hazarded, upon the result of any contest or trial of skill, speed or endurance between men or beasts, whether such contest or trial take place within or outside of this state, or upon the result of any lot, chance, casualty, or uncertain or contingent event whatever, shall be punished by imprisonment in the state penitentiary for not more than five years.'

It is with some difficulty that we have followed the argument on this branch of the case, but, if we have correctly gathered it, it is that the statute is aimed at bookmaking as that term is commonly understood, and that the acts charged against the appellant in the several counts on which he was convicted do not come within any of the accepted definitions of that term. But, while the phrase, 'pool selling and bookmaking' is the Legislature's own, and are the names by which that body designated the acts which it denounced as a crime in the body of the section following the names, we cannot think that the Legislature thereby intended to say that anything more than the denounced acts were necessary to constitute pool selling or bookmaking. In other words, the acts the Legislature denounced as a crime must be found in the body of the section to which the names are applied, not from the common or ordinary definitions of the names themselves.

Turning to the language of the section quoted, it will be observed that the Legislature denounced it as a crime for any person to 'receive * * * any money or thing of value designed or intended to be bet, wagered or hazarded, upon the result of any contest or trial of skill, speed or endurance between men or beasts, whether such contest or trial take place within or outside of this state. * * *' The counts in the information follow almost literally the wording of the statute and are clearly sufficient under the rule in this state as we have repeatedly announced it. The statute thus construed is indeed drastic, and it may be, as the appellant contends, that, construed in this manner, it will punish a minor transaction, not particularly harmful in itself, with a severity not usual under the criminal statutes. But, if it has these consequences, the remedy must be sought before the lawmaking power. The courts cannot for this reason ignore or set aside a plain mandate of the Legislature. It can inquire into its constitutional powers to pass the law, and can inquire into the procedure to ascertain whether the purported law is in fact a law, but they may not find the law invalid because of its severity unless it falls within that clause of the Constitution which prohibits the infliction of cruel punishments, and this act we cannot say does this.

The cases the appellant cites to maintain his contention we shall not specially review. The ones most nearly in point are found in the New York Supplement reports. But these are not opinions of the Appellate Division of the Supreme Court of that state. They are but opinions of individual judges of the court in cases before them on writs of habeas corpus. Nor are the reasons given in the opinions for the conclusions reached at all appealing; at least, they are not so to us. An illustration taken from one case will suffice for the others. A defendant was accused of gambling, the overt act constituting the offense being betting on the result of a game of golf. While the cause was pending before a magistrate, a judge of the Appellate Division of the Supreme Court issued a writ of habeas corpus, and, after a hearing on the writ, discharged the defendant. The judge, after stating that the statute was not directed against betting, used the following language: 'The law has never descended to thrusting its nose into the personal conduct of men and women to that extent, and those who try to make out that it has only tend to create a disrespect for it. In the administration of the laws no one should set himself up as better or stricter than the laws. No law can be enforced except by public opinion, and wise legislators never pass a law which lacks public opinion in its favor. Such laws are dead letters, except as they are stirred up from time to time by the few among us who delight in meddling with the conduct of others, or to levy blackmail. The community sheds them as a snake sheds its skin.'

The cases from other jurisdictions, where, as we conceive, the language is more becoming to the dignity of a court, are founded on statutes so widely different from our own as to be of no aid in the determination of the question here involved.

The next contention is that the evidence did not justify the verdict of the jury. The evidence we shall not review in detail. It is sufficient to say that it all but conclusively shows that the appellant between November 1, 1928, and June 29, 1929, received from the person named in the information to be bet on different contests, such as football games, baseball games, prize fights, and college crew races, sums aggregating approximately $20,000. Since we find that the statute makes it a crime for one person to receive money for these purposes from another, there is no question as to the sufficiencies of the proofs.

Of the trial errors of which complaint is made, the first is founded on the opening statement of the prosecuting attorney to the jury. In the course of his statement, the attorney used this language:

'We will show you that the defendant called Mr. Melhart, whom he knew to be the Cashier in the Treasurer's office in Bellingham, and from time to time advised him to bet money through him in Seattle, and we will show you, in furtherance of Mr. Green's solicitation, that this young man did bet large sums of money and that he bet on several occasions money which he had secured--some was his own at first and later he sent down altogether $20,000 to this defendant, losing most of the money through Mr. Green.

'We will show that Mr. Melhart came down and told Mr. Green that he was short $18,000 in his accounts with the Treasurer's Office. We will show Mr. Green said 'I could see the handwriting on the wall. I knew you were going to lose.' And we will show you that, after Mr. Green knew that this young man was $18,000 short with Whatcom County, that Mr. Green solicited some money from him and did receive two more bets, one in the sum of $1,000 on this. * * *'

At this point, the attorney for the defendant interrupted the prosecuting attorney, and made the objection that the source from which Melhart received the money which he forwarded to the appellant was not a material circumstance, and not proper to be received in evidence. After some discussion, the trial court ruled with the objection, whereupon the attorney moved the court to discharge the jury for the reason that the attorney was guilty of misconduct 'of such a character the prejudice created in the minds of the jury thereby could not be removed or obliterated by an instruction to disregard the same.' The court refused to grant the motion, and it is contended in this court that it erred in so refusing. But we find nothing in this that requires a reversal. There was nothing willful in the conduct of the prosecuting attorney. He believed, and ably contended, that testimony to the effect stated was admissible. However, after the court ruled on the contention, he made...