State v. Mulkey
Decision Date | 30 October 1899 |
Citation | 59 P. 17,6 Idaho 617 |
Parties | STATE v. MULKEY |
Court | Idaho Supreme Court |
ACT TO PROHIBITING GAMBLING CONSTRUED.-The act of February 6, 1899 known as the anti-gambling act, held valid. When the defendant in a criminal action attacks certain sections of an act as violative of the constitution, and it does not appear from the record that any of his rights affected by said sections were involved on the trial, or by the judgment there remaining (should the sections so attacked be eliminated) sufficient to constitute a valid act that supports the judgment, the court will not pass on the validity of the sections so attacked.
(Syllabus by the court.)
APPEAL from District Court, Idaho County.
Affirmed.
James W. Reid, for Appellant.
Said act was not passed by the legislature of the state of Idaho as provided and required by the constitution of the state of Idaho. (Cohn v. Kingsley, 5 Idaho 416, 49 P. 985; Ex parte Ah Yem, 53 Cal. 246; State v. Carr, 6 Or. 133 425; Trimble v. State 27 Ark. 355; State v Melville, 11 R. I. 417; Const., art. 1, sec. 13; art. 17, sec. 1; Ieck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115.)
S. H. Hays, Attorney General, for the State.
The title of this act is sufficient. (State v. Doherty, 3 Idaho 384, 29 P. 855.) Neither bad grammar or bad English will defeat the operation of the statute. (23 Am. & Eng. Ency. of Law, 369.) It does not appear that in the passage of the act there were any other defects, hence Cohn v. Kingsley, 5 Idaho 416, 49 P. 985, does not apply. It is contended that sections 1 and 2 of the act fix no maximum punishment and therefore are of no effect. Such is not the case. Section 6313 of the Revised Statutes provides a maximum punishment in case of misdemeanors not otherwise provided for. The act would not be invalid even in the absence of such provision. (Martin v. Johnson, 11 Tex. Civ. App. 628, 33 S.W. 306.)
The appellant was charged with the offense of gambling, by criminal complaint, in the probate court of Idaho county and was tried and convicted; whereupon he appealed to the district court, was again tried, and convicted; and from the judgment of conviction in said district court he has appealed to this court.
The errors assigned by appellant are as follows:
The act in question, known as the "Anti-gambling Act," is found at pages 389, 390 of Session Laws of 1899. The record before us does not contain any of the evidence introduced at the trial, except a duly certified transcript of the House and Senate journals relating to the passage of said act by the legislature. The record before us shows that the defendant was convicted upon a specific charge of conducting a game played with cards, to wit, a game of "faro." It does not appear that any of his property was seized or destroyed; hence, it is unnecessary to pass upon the validity of sections 4, 5, 6, 7, and 8 of said act. If said sections be void (which we seriously doubt), as claimed by the appellant, the remaining sections would, under the provisions of section 16, article 3, of the constitution, be valid, if constitutionally passed; as, eliminating these five sections, there would remain sufficient to constitute a valid act which would support the judgment of conviction. This disposes of appellant's first, fourth and fifth assignments of error.
Touching the second assignment of error, an inspection of the record shows that it is based upon the idea that the engrossed bill is different from the printed bill. This contention is not sustained by the record. The legislative...
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