State v. Hogriever

• Decision Date: 23 May 1899
• Citation: 152 Ind. 652,53 N.E. 921
• Parties: STATE v. HOGRIEVER.
• Court: Indiana Supreme Court

152 Ind. 652

53 N.E. 921

STATE

v.HOGRIEVER.¹

Supreme Court of Indiana.

May 23, 1899.

Appeal from criminal court, Marion county; Frank McCray, Judge.

George Hogriever was convicted of playing baseball on Sunday, and he appealed to the Marion criminal court, which entered an order quashing the affidavit, from which the state appeals. Reversed.Charles S. Wiltsie, Wm. L. Taylor, and Merrill Moores, for the State. Frank B. Burke and Henry Warrum, for appellee.

DOWLING, J.

The appellee, with three other persons, was charged, upon affidavit, in the police court of the city of Indianapolis, with a violation of the statute prohibiting the playing of baseball on Sunday, where any fee is charged. He was found guilty and fined. He appealed to the Marion criminal court, and on his motion the affidavit was quashed, and he was discharged. The state appealed, and the error assigned is the ruling of the court on the motion to quash.

The affidavit thus brought under review is in these words:

“State of Indiana, Marion County, City of Indianapolis-ss: Be it remembered that on this day before the judge of the police court of the city of Indianapolis personally came Chris Kruger, who, being duly sworn, upon his oath says that Albert H. Pardee, George Hogriever, Ed. H. Deady, Jess. Hoffmeister, late of said city and county, on the 22d day of May, in the year 1898, at and in the city of Indianapolis, county aforesaid, did then and there unlawfully engage in playing a game of baseball, where an admittance fee of twenty-five cents each was charged, and paid by the spectators then and there being, the said day being the first day of the week, commonly called Sunday, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana. [Signed] Chris Kruger.

Subscribed and sworn to before me this 23d day of May, 1898. Charles E. Cox, Judge.”

The affidavit is assailed upon the grounds (1) that it does not state facts sufficient to constitute a public offense; (2) that the act of the legislature upon which it is based is unconstitutional; and (3) that the said act is ambiguous and uncertain, and therefore void.

The statute so assailed is in these words: “It shall be unlawful for any person or persons to engage in playing any game of baseball where any fee is charged, or where any reward, or prize, or profit, or article of value is depending upon the result of such game, on the first day of the week commonly called Sunday, and every person so offending shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding twenty-five dollars.” Acts 1885, p. 127 (Burns' Rev. St. 1894, § 2087). Among the objections taken to the sufficiency of the affidavit, it is urged that if the word “fee,” in the statute, means a charge for admission, then the name of some person paying it should be stated, and in support of this objection we are referred to 10 Enc. Pl. & Prac. pp. 505, 506; Harris, Cr. Law, pp. 265, 266; State v. Stucky, 2 Blackf. 289;State v. Jackson, 4 Blackf. 49;State v. Noland, 29 Ind. 212;Zook v. State, 47 Ind. 463;Alexander v. State, 48 Ind. 394; and McLaughlin v. State, 45 Ind. 346. But the rule as laid down in these authorities goes only to the extent that when the names of third parties enter into the offense, and are necessary for the description of the crime charged, and for its identification, they must be set out. In the case of State v. Stucky the indictment charged a sale of liquor “to divers persons” without license. Held, that the names of the persons should be stated, if known. In State v. Jackson the charge of selling liquor to an Indian of the Miami tribe, whose name was unknown, was held good. State v. Noland was an indictment for suffering a house to be used for gaming. Held, that the names of the persons who were suffered to gamble should be set out, if known. Zook v. State and Alexander v. State were prosecutions against owners of billiard tables for permitting minors to play billiards. Held, that the names of the minors, and of the persons with whom they played, should be stated, or the reason given for not doing so. McLaughlin v. State was an indictment for selling liquor to persons intoxicated, etc. Held, that the names of the persons to whom sales were made should be set out, if known. It will be observed that none of these offenses bears the least resemblance to the misdemeanor before the court, in its character, circumstances, or legal description, and the rule which governs those cases does not apply to the offense set forth in this record. The object and meaning of the statute under examination are plain. The intention of the people of the state was by this law to prohibit the playing of baseball on Sunday where a fee was charged. “Where” signifies, “a place at which,” or, “under circumstances in which.” Stand. Dict.; Webst. Int. Dict. The law applies to exhibitions in which the actors or players engage in the game of baseball. It discriminates between free exhibitions of this kind, and those where a fee must be paid by the persons witnessing the performance. It knows but two parties to such an exhibition,-the players and the spectators. It does not in the least concern itself with managers or owners of baseball teams, lessors or lessees of the grounds where the game is played, or the proprietors of adjoining lands or buildings. It is immaterial to whom the fee is paid, whether directly to the players, to their agent or manager, or to some person or company hiring or otherwise securing the services of the players. The natural meaning and obvious signification of the word “fee,” in its connection in this statute, is the sum charged each person admitted to witness the game of baseball by the persons giving the exhibition. It is not necessary to set out the name of any person paying such fee for admittance. It is enough to aver that a fee for admittance was charged. This indicates that the exhibition was not free, but was given for the purpose of gain, and in that respect it sufficiently describes the offense. Hull v. State, 120 Ind. 153, 22 N. E. 117. On the trial it would not be necessary to prove that any particular person paid a fee for admittance. It would be sufficient to show that the exhibition was not free, but that persons desiring to witness it were required to pay a fee or buy a ticket to secure that privilege. Evidence that one or more persons did pay fees for admittance would, of course, be competent proof that it was not a free entertainment, but one where a fee was exacted from the spectators. This construction of the statute does not extend its scope beyond the fair and natural import of its terms.

We are next asked to hold the statute void for uncertainty and ambiguity, and the supposed defect consists in the use of the words “where any fee is charged.” It is said that this part of the act is indefinite and uncertain, and that it cannot be understood what is meant by “fee,” or by whom it is to be paid. What we have said in regard to the affidavit is a sufficient answer to this objection. There are but two kinds of exhibitions,-one free, where the spectator is admitted without charge; the other restricted, where the spectator is charged a fee for admittance. Two classes of persons, only, are recognized by the statute as concerned in such exhibition,-the players, and the persons assembled to witness the game. Keeping these facts in view, there is not the slightest difficulty in determining what is meant by the term “fee,” or by whom and to whom it is to be paid.

The constitutionality of the statute is attacked, and, in connection with this assault, it is contended that, the act being penal, it is to be strictly construed. We recognize the importance of the rule as to the construction of penal statutes in all cases to which it properly applies, but we do not believe it should be so unreasonably enforced as to defeat the sovereign will, when that will is expressed, as it is here, with ordinary certainty, and is easily intelligible. A law established by the legislature is entitled to the respect of every branch of the state government. It should never be lightly overthrown or set aside as unconstitutional. A statute enacted with the constitutional formalities comes before this court sustained and authenticated by the sanction and approval of two of the three great departments of the state government. The power to set aside and declare void an enactment so sanctioned and approved is the highest exertion of the constitutional authority of this court,-a prerogative always exercised with reluctance, and never asserted where the question of the constitutionality of a statute is in doubt. Counsel for appellee insist that the act prohibiting the playing of baseball on Sunday, where a fee is charged, and subjecting the players to a fine, is in conflict with those clauses of the federal and state constitutions which forbid class legislation. The fourteenth amendment of the constitution of the United States provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens, nor deny to any person, within its jurisdiction, the equal protection of the laws.” The constitution of the state of Indiana contains this clause (article 1, § 23): “The general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon...