State v. Lemon

• Decision Date: 31 August 1870
• Citation: 46 Mo. 375
• Parties: STATE OF MISSOURI, Appellant, v. JAMES MCD. LEMON, Respondent.
• Court: Missouri Supreme Court

46 Mo. 375

STATE OF MISSOURI, Appellant,

v.JAMES MCD. LEMON, Respondent.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fifth District Court.

H. B. Johnson, for appellant, contended that certain legislation intended for the suppression of horse-racing, by rendering all debts incurred by betting thereon not collectable, might amount to such a constructive prohibition as would render the act punishable by indictment. (2 Bish. Crim. Law, § 591; State v. Posey, 1 Humph. 384; Huff v. The State, 2 Swan, 279; Meyers v. State, 3 Snead, 98.)

No counsel appeared for respondent.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted in the Circuit Court of Caldwell county for betting money “upon a game then and there played by means of a gambling device called a horse-race, which was then and there adopted, devised, and designed for the purpose of playing games of chance, for money and property, against the form of the statute,” etc.

On motion, the indictment was quashed, and the State appealed. This is an attempt to bring horse-racing within the provisions of the statute against gaming. (1 Wagn. Stat. 502, §§ 16-18.)

The question has been heretofore conclusively settled, and is no longer open to controversy. In the case of The State v. Hayden, 31 Mo. 35, it was expressly adjudged that a horse-race was not a gambling device within the meaning of the act concerning crimes and punishments.

Judgment affirmed.

The other judges concur.