State v. Maloney

• Decision Date: 22 May 1905
• Docket Number: 15,576
• Citation: 39 So. 539,115 La. 498
• Court: Louisiana Supreme Court
• Parties: STATE v. MALONEY

39 So. 539

115 La. 498

STATE v. MALONEY

No. 15,576

Supreme Court of Louisiana

May 22, 1905

On Rehearing, December 4, 1905. Rehearing Considered.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

A. E Maloney was convicted of operating a pool room, and appeals. Affirmed.

Alexander & Wilkinson, for appellant.

Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty (Lewis Guion, of counsel), for the State.

OPINION

NICHOLLS J.

500 Statement of the Case.

In an indictment found by the grand jury for the parish of Caddo it was charged that the defendant did on the 16th of January, 1905, "establish, open, operate, conduct, and work a certain pool room, located on Texas street, between Market and Edwards streets, in the city of Shreveport, contrary to the form of the statute of the state of Louisiana in such case made and provided and against the peace and dignity of the same." He was tried before the district judge, found guilty and sentenced to pay a fine of $ 325.

He relies for reversal on the grounds assigned in three bills of exception -- one to the court's overruling a demurrer to the evidence; another to the overruling of a motion for a new trial; another to the ruling of a motion in arrest of judgment.

The first bill is as follows:

"Be it remembered that on the trial of this case, after the state had introduced all of its evidence, which evidence was an agreed statement of facts and in words and figures as follows:

"'State of Louisiana v. A. E. Maloney.

"'No. 3085. District Court, Caddo Parish, La.

"'In the above case it is admitted, for the purposes of this trial: That the defendant is president of the Pelican Telegraph Company, a corporation organized under the laws of the state of Louisiana, as per copy of charter attached, and is the principal stockholder therein. That it has leased a line of wire from Shreveport to Texarkana, Arkansas, and advertised to receive any and all messages that may be tendered to it; but the bulk of its business is in wiring offers of bets as hereinafter stated. That it has an office on Texas street, in the city of Shreveport, parish of Caddo, Louisiana, to which its wire extends, and in its office it had posted the various races that are being run at the race courses in the country, and on a blackboard it puts the names of the various horses that are to run in these races, with the different odds that are offered on each. That from time to time the odds on the different horses are changed on said blackboard according to advices received. That before a race is run any party that desires to do so signs a telegram himself, or has some one other than the defendant to sign it for him, addressed to Shifling & Mayfield, of Texarkana, Arkansas, requesting them to bet for the party signing same any amount that is named in the telegram on a horse named, to run at the track mentioned, on the odds posted on the board. That for sending this wire the defendant's company charged the party twenty-five cents and gives him a receipt for the amount of money that he then deposits, in the form of attached receipt, marked "A." That this wire is sent by the company to S. & M., at Texarkana, Arkansas, and when the race is run these parties in Texarkana wire the result back to the defendant's company, who calls out the result; that is to say, the post time of the race is called, then the start, and during the progress of the race the order of the horses participating therein is called at the different quarters, and finally the winners are announced, then, when the race is confirmed, the amount of the winning of the successful betters is paid over to them by the defendant, who is returned this amount in a monthly settlement made by him with said S. & M.

"'The defendant's company receives these telegrams and sends them to Texarkana, Arkansas, for acceptance by said S. & M., and when they accept them they place the bet on the race as requested. If they do not accept them, they wire defendant here, and he refunds to the better the amount deposited.

"'It is admitted that defendant receives from S. & M. commission of twenty per cent. on the amount of all such bets that are sent to them over the wires of said company. The company has in its office a telegraph operator, who receives and sends these wires over the company's lines and calls out the progress of the race as he receives them to the persons that may be then assembled in said office. That there is also in the said office or place of business a board maker, who posts the odds; a man who writes the receipt for the one who places his money on a horse; an employe who figures the odds for those who desire to place a bet on a combination of horses in different races; a man who pays the successful betters; and a bookkeeper. It is also admitted the defendant generally supervises the business and directs the duties of the above named employes.

That usually there are about fifteen or twenty persons when these wires are being received as before stated. The form of telegram used in sending such offers to bet is hereto attached and marked "B"; the first blank meaning "to win," the second for "second place," and the third blank for "third place" in the race.

"'It is admitted that the defendant on the date named in the indictment was so conducting this place, and in the manner named for this said company sent a number of telegrams to S. & M., at Texarkana, Arkansas, for various persons of Shreveport, requesting that they bet various amounts on various horse races then being about to be run at various tracks outside of the state, some of which won, and the money was paid to them here, and others lost.

"'It is admitted that there is posted in the office of said company in large and legible letters the following notice:

"'"No bets are received here on horse races. Your commissions will be received and placed outside of the state.

"'"Pelican Telegraph Company".

"'[Signed] Alexander Wilkinson,

"'Attys. for Defendants.

"'J. M. Foster,

"'D. Atty., 1st District.'"

Then follows a certified copy of the charter of the Pelican Telegraph Company, executed by notarial act in the parish of Caddo, together with a certificate of the Secretary of the State of Louisiana to the effect that a copy of the same had been recorded in his office, and approving the charter.

The bill then proceeds as follows:

"The defendant filed a demurrer to said evidence, charging that said evidence disclosed the commission of no crime by him under the laws of the state of Louisiana, and that said evidence particularly failed to show that he was keeping a pool room in violation of the laws of said state, as is fully shown by said motion, which is hereto annexed and made part hereof. That after argument of said case and the said demurrer the court overruled the same in a written opinion, which is hereto annexed and made part hereof, and held that the defendant was guilty under said evidence and agreed statement of facts, and that said facts did show and constitute a crime under the laws of the state of Louisiana, and that under said facts said defendant was guilty of conducting and operating a pool room in the state of Louisiana, for the reasons and causes as set forth in said written opinion, hereto annexed and made part hereof.

"Thereupon the defendant excepted to the overruling of said demurrer to the evidence aforesaid, and excepted to the court finding the defendant guilty under said agreed statement of facts, and presents this his bill of exceptions which was read, signed, and filed in open court on this the 24th day of February, 1905."

The demurrer to evidence referred to was annexed to bill of exceptions, and was as follows:

"Now comes the defendant and demurs to the evidence herein presented, and says, for cause of demurrer: That said evidence does not show the commission of any crime or offense by him under the laws of Louisiana, and especially does said evidence fail to show the commission by him of the offense set forth and designated in the bill of indictment herein presented. That it does not show that he opened, operated, conducted, or worked in a pool room in this state, nor does said evidence show that said place of business described in said evidence is or was a pool room within the meaning of the laws of said state.

"That for these reasons this court is without right or jurisdiction to proceed further in said cause, except to order the discharge of this defendant, and is without right or jurisdiction to fine or imprison this defendant for the acts set forth in said admitted facts herein.

"In view of the premises, he prays to be hence discharged and for general relief."

Defendant filed the following motion for a new trial:

"In the above cause comes the defendant and shows unto the court that the opinion and judgment herein is contrary to the law and the evidence in said case, in that the evidence fails to show that the defendant opened, conducted, operated, or worked in a pool room in this state, and for the further reason that said evidence failed to show that there was any bets made or accepted on any horse race in said place; the betting being done outside of the state, and not in the state of Louisiana.

"Defendant further shows to the court that Act No. 128 of 1904, under which this prosecution is brought, is unconstitutional and null and void, for the reason that said act does not define the crime denounced therein, nor is same defined or designated by any act or law of the state of Louisiana, and further, that said act embraces more than one object and violates thereby article 31 of the Constitution of 1898.

"Further that the indictment herein does not inform the defendant of...