State v. Mitchell
| Decision Date | 21 October 1895 |
| Citation | 17 Mont. 67 |
| Parties | STATE v. MITCHELL. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Lewis and Clarke county; Henry N. Blake, Judge.
Donald Mitchell was acquitted of the crime of opening a faro game, and the state appeals. Affirmed.
H. J. Haskell, for the State.
B. P. Carpenter and Toole & Wallace, for respondent.
An information was filed against the defendant accusing him of opening a faro game, and thus violating section 600, c. 9, Pen. Code 1895. The section reads as follows: “Every person who deals, plays, carries on, opens or causes to be opened *** any game of faro *** or any banking or percentage game played with cards, dice, or any devide for money, *** is punishable by fine not less than two hundred dollars nor more than one thousand dollars, and must be imprisoned in the county jail until such fine and costs of prosecution are paid, such imprisonment not to exceed one year,” etc. There was a trial to a jury. On motion of the defendant, the court charged the jury as follows: The defendant was acquitted. Teh state appeals. Upon the trial, an agreed statement of facts was offered in evidence, which in substance recited the various acts of the legislature bearing upon gambling, and recapitulating the history of the bills affecting the subject of gamling. These matterw will be more fully referred to later on. As will be noticed by the insturction of the court to the jury, the learned judge of the district court decided that the section numbered 600 of the Penal Code of the state, as codified and published, has no validity, and was not enacted in accordance with the provisions of the constitution. Whether or not that ruling was correct is the subject of the review by us.
Counsel for all parties have referred the court to the detailed history of the several bills and laws bearing upon gaming, to the end that we may correctly ascertain the exact condition of the statute under which the respondent was charged. It appears by the legislative records referred to that on January 17, 1895, House Bill 35, entitled “A bill for an act to establish a Penal Code for the State of Montana,” was introduced. By a suspension of the rules, the bill was read a first and second time by title only, and having been already printed, it was considered printed, and referred to the code committee. The printed bill referred to was the Penal Code, as reported and printed in 1892 by the code commission appointed to codify the criminal and civil law and procedure, and to revise, compile, and arrange the statute laws of Montana, pursuant tot he act of March 14, 1889 (Sees. Laws 1889, p. 116). This printed bill (or proposed Penal Code) had in it a chapter 9, headed “Gaming,” containing seven sections, numbered 360 to 367, inclusive. (Penal Code as reported for adotpion in 1892, p. 54.) These several sections are substantially like sections 600–607, c. 9, Pen. Code 1895, or like sections of chapter 9, p. 1071, Pen Code, Sanders' Ed., as published and in general use. They prohibited playing faro or any banking or percentage games of cards or dice for money or any representation of value. This will be seen by referring to section 600, quoted above. On January 23 1895, in the legislature, Bill No. 35, for an act to establish the Penal Code, was reported back with certain amendments. Upon the House Journal for January 24, 1895 (page 124), we find that the committee on the codes recommended the adoption of the Penal Code, with proposed amendments. The particular amendment affecting gambling was to strike out “all of chapter 9, p. 54, of the Penal Code, consisting of sections 360 to 367, both inclusive; ***” and it was recommended that section 12 of an act entitled “An act to amend an act entitled ‘An act concerning licenses,’ approved Sept. 14, 1887, be substituted as section 357, as follows.” Then follow the provisions of the act of September 14, 1887, fixing the licenses to be paid by persons keeping houses or saloons where games for money are played, and imposing upon those who violate the provisions of the section the same penalties originally imposed by the law of 1887. The committee on codes, in the same report, also recommended that sections 1 to 13, both inclusive, of an act entitled “‘An act to prohibit certain gambling games, and fixing penalties for the violation thereof,’ passed at the 16th legislative assembly, and approved February 20, 1889, be inserted as sections 358 to 369a, consecutively, as follows.” Then follow the several sections of the law of 1889, which counel designate in their argument as the “Hunt Bill of 1889.” The provisions of this law prohibit a large number of specified gambling games, but expressly did not prevent or prohibit the licensing and conducting, according to law, of the games called “faro bank” and “round the table poker.” The recommendation of the committee on codes was adopted by the legislature, and on January 31st the Penal Code was finally passed. The enrolled bill contains, as part of chapter 18 of title 9 of part I of the act adopting a Penal Code, sections numbered 357 to 369a, inclusive, appropriately numbered, and as brought into the bill by the amendments recommended by the committee on codes, hereinbefore referred to, and adopted on January 24th. We therefore had in the Penal Code, as passed by the legislature, no chapter 9 under the head of “Gamgling.” It was wholly wiped out, and with it went the law which prohibited faro and certain other gambling games. But the legislature did not stop there. They had gone further, and, in their discretion and power, they adopted the law of 1889, and thus expressly authorized certain games of cards, including faro, to be played for money, and prevented the playing of such others as had been prohibited before the adoption of the codes. In other words, they were not willing to abolish gambling entirely; so they rejuected the recommendations of the code commission, and restored the laws to the condition they were in when the legislature met. In doing so, they saw fit to annex the provisions of the re–enacted the laws of 1889 to chapter 8, and let them follow in regular numerical order the last section, under the head of “Lotteries.”
Now, let us see whether, by subsequent action of the legislature, this express permission to play faro and certain other games, embodied in the re–enacted law of 1889, was revoked by any repeal or other valid act. On February 4, 1895, Senate Bill No. 48, entitled “An act to amend chapter 9 of the Penal Code of the State of Montana,” was introduced. On February 28, 1895, his bill became a law. Its title, as appears by the enrolled bill, reads as follws: “Senate Bill No. 48, §An act to amend chapter nine of the Penal Code of the State of Montana”' It then proceeded: Section 360 of this senate bill is substantially the same as the printed section 600, c. 9 (entitled “Gaming”) p. 1071, of the Sanders' Codes, or the same chapter, same title, of the Montana Annotated Codes (volume 2). It is somewhat more ample than section 360, originally reported by the code commissioners, although, doubtless, the geneal prohibition against gambling would have extended to all games for moeny, whether enumerated or not. But, as said before, chapter 9, concerning gaming, was already stricken out by the legislature; Bill No. 35, for a Penal Code, having passed both branches some five days before Senate Bill No. 48 was introduced. The Penal Code had not become a law, for the governor did not approve it until February 19, 1895. There was therefore being the body no chapter 9 concerning gaming to be amended in the Penal Code, as chapter 10 followed chapter 8. There...
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