State v. Nease

• Decision Date: 15 May 1905
• Citation: 46 Or. 433,80 P. 897
• Parties: STATE v. NEASE.
• Court: Oregon Supreme Court

80 P. 897

46 Or. 433

STATE v. NEASE.

Supreme Court of Oregon

May 15, 1905

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

M.G Nease was convicted of a nuisance, and appeals. Affirmed.

E.B Watson and J.M. Gearin, for appellant.

A.M. Crawford, Atty. Gen., and Henry E. McGinn, for the State.

BEAN, J.

The defendant was indicted for willfully committing an act which grossly disturbs the public peace, openly outrages the public decency, and is injurious to the public morals, in that he "on the 20th day of October, A.D.1904, and thence continuously until the 1st day of November, 1904, *** did then and there, for gain, habitually sell pools upon horse races, and habitually procure idle and evil-disposed persons to come to his house to buy pools and to bet upon horse races, to the common nuisance and annoyance of all good citizens," etc. He had previously obtained from the city of Portland a license to conduct a poolroom. The trial court held that the license was no protection, and refused to direct an acquittal of the defendant. He was consequently convicted, and appeals.

The evidence shows that he was the keeper and proprietor of what is called a "turf exchange," or poolroom, on one of the principal thoroughfares in the city, at which persons daily congregated for the purpose of betting upon horse races run in other states, and reported to him by telegraph. The odds on every horse in any race of importance about to be run, as made at the race course, were reported to the defendant before the race, and posted for the information of the public on a blackboard in the room used by him. A person desiring to bet would select a horse, pay the amount of his bet according to the odds appearing on the blackboard, and receive from the defendant a ticket showing the sum to which he would be entitled in case the horse selected by him won. As soon as the race was run the result would be immediately telegraphed to the defendant, and he would pay the amount coming to the holders of tickets on the winning horse, less a certain per cent. as commission. That such a house is a gaming or gambling house, and punishable as a nuisance at common law, whether betting on a horse race is a crime or not, has so often and uniformly been held by the courts that it is no longer open to discussion. There is no dissent in the adjudged cases, and it is unnecessary to do more than cite the authorities: McBride v. State, 39 Fla. 442, 22 So. 711; Thrower v. State, 117 Ga. 753 45 S.E. 126; Swigart v. People, 154 Ill. 284, 40 N.E. 432; Swigart v. People, 50 Ill.App. 181; Cheek v. Commonwealth, 79 Ky. 359; People v Weithoff, 51 Mich. 203, 16 N.W. 442, 47 Am.Rep. 557; People v. Weithoff, 93 Mich. 631, 53 N.W. 784, 32 Am.St.Rep. 532; McClean v. State, 49 N.J.Law, 471, 9 A. 681; Miller v. United States, 6 App.D.C. 6. By its charter the city of Portland is authorized to "prevent and suppress gaming and gambling houses," but not to make such places lawful by licensing them. Schuster v. State, 48 Ala. 199. Nor, as we understand it, are these positions seriously controverted by the defendant, but his contention is that there is no law in this state for the punishment of the keeper of a common gaming house; that, although the statute makes certain kinds of gambling a crime, and punishable as such (B. & C. Comp. § 1944), and provides for the punishment of the owner of a building, who suffers or permits gambling to be carried on therein ( Id. § 1949), it does not make the keeping of a gambling house unlawful, or provide for the punishment of the keeper or proprietor thereof.

Now there is no statute providing specifically for such an offense, nor have we any common-law offenses, as such. State v. Vowels, 4 Or. 324; State v. Gaunt, 13 Or. 115, 9 P. 55. But section 1930 provides: "If any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to the public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than fifty nor more than two hundred dollars." This section is a part of the original Criminal Code reported to and adopted by the Legislature in October, 1864, and was probably taken bodily from the draft of a Penal Code for the state of New York prepared by David Dudley Field and his associates in April of that year. Proposed Penal Code, § 736. It has been generally known as the "Nuisance Statute," and prosecutions and convictions for maintaining public nuisances have been had thereunder. State v. Bergman, 6 Or. 341. It was evidently intended to cover such offenses against the public peace, the public health, common decency, and the public morals, and such as grossly injure the person or property of another, which are not otherwise made punishable by the Code. This is indicated quite clearly by the marginal index or syllabus accompanying the Code, as reported to the Legislature and adopted by it. The section is there described as covering "acts contrary to good morals and common decency." This syllabus became a part of the law, and furnishes, as said by Mr. Justice McArthur, "the highest source from which to draw information as to the nomenclature of the said Code." State v. Vowels, 4 Or. 324. It is true, the offenses referred to were technically denominated "nuisances" at common law, and that term does not occur in the statute; but the language used is essentially descriptive of the general character of such offenses, and quite equivalent thereto. Certain acts were punishable as nuisances at common law because they outraged public decency and were against good morals, such as habitual, open, and notorious lewdness, roaming the streets naked (Wharton, Crim.Law, § 1432), the indecent exposure of the person on a highway or in a public place ( State v. Rose, 32 Mo. 560; Gilmore v. State, 118 Ga. 299, 45 S.E. 226), the exhibition of an unseemly or obscene sign or picture ( Knowles v. State, 3 Day, 103; Commonwealth v. Sharpless, 2 Serg. 7 & R. 91, 7 Am.Dec. 632), and other similar matters. Other acts were likewise punishable because they injuriously affected the public health, such as maintaining slaughterhouses in a populous neighborhood, or the exposing for sale for human food of putrid or infected articles which were injurious to the health, and the like. Wharton, Crim.Law, § 1433 et seq. Still others because they disturbed or injured the public peace or morals, by congregating large numbers of idle and dissolute persons in one place for vicious purposes, and of such were common gaming houses. The keeping of such a house was a separate and well-defined offense at common law, entirely independent of the criminality of the business conducted therein. It was punishable as a nuisance before any sort of gambling was prohibited or even considered to be against public policy, because it tended to draw together disorderly persons, and to encourage vice, idleness, and breaches of the peace. 4...