State v. Randle

• Decision Date: 01 January 1874
• Citation: 41 Tex. 292
• Parties: THE STATE v. F. L. RANDLE.
• Court: Texas Supreme Court

41 Tex. 292

THE STATE

v.F. L. RANDLE.

Supreme Court of Texas.

1874.

APPEAL from Galveston. Tried below before the Hon. Samuel Dodge.

George Clark, Attorney General, for the State.

Flournoy, Sherwood & Scott, for appellee.

Shepard & Searcey, also for appellee.

DEVINE, ASSOCIATE JUSTICE.

The defendant was indicted, charged with having established a lottery, known as “The Galveston Gift Enterprise Association,” and with having disposed of property and money by said lottery.

Defendant moved to quash the indictment.

The first ground of motion to quash the indictment is embraced in the second exception, which is as follows: “No such offense as establishing a lottery is known to the laws of Texas, and no such offense is defined or described in the Criminal Code or the amendments thereto.”

3d. “That said indictment is indefinite and uncertain, and charges two distinct offenses.”

The court sustained the motion to quash. The District Attorney appealed, and assigns as error the judgment of the court in quashing the indictment.

Appellee, in support of the objection to the sufficiency of the law under which the indictment was framed, argues that the cases of The State v. Foster, 31 Tex., 578;State v. Smith, 32 Tex., 167;State v. Rahl, 33 Tex., 76; and Fennell v. The State, 32 Tex., 378, are conclusive on this subject.

We do not consider these cases analogous to the present one. In the case of The State v. Foster, the defendant was charged with the offense of fornication. As remarked by Justice Lindsey in the opinion: “The moral offense of fornication is not defined by the code.” There is no reference by name (in the code) to this act, save in art. 392, where the living together of a man or woman in adultery or fornication is defined as an offense; and art. 395, which declares that every white person who shall live in adultery or fornication with a negro or person of mixed blood shall be punished. Foster was not charged with living or cohabiting with a woman in fornication. He was simply charged with having committed the act. The court said, the living together, &c., constituted the offense, and that not being charged, the accused was not indicted for any offense known to the code, and affirmed the judgment of the District Court. In the case of Smith v. The State, Justice Lindsey, referring simply to the case of The State v. Foster, says, “that case settles this.”

In State v. Rahl, Justice Lindsey refers in three lines to the Foster case as the ground for the decision. In Fennell v. The State, Justice Lindsey, delivering the opinion of the majority of the court, dismissed the case. That one, when examined, will not be found to have any reasonable application to the case at bar. The cases referred to do not, in our opinion, control this case. We do not consider them as having any application to it. Art. 404 declares: “If any person shall establish a lottery, or dispose of any estate, real or personal, by lottery, he shall be fined not less than one hundred dollars, nor more than one thousand dollars.” And we have only to inquire, Is the law sufficient to support the indictment? We think it is.

Counsel for appellee lays stress on the prohibition contained in article third of the Criminal Code, which declares: “In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, as a penal offense, unless the same is expressly defined and the penalty affixed by the written law of the State.” This article was intended to prohibit the prevailing practice in this State, before the adoption of the code, of looking to the common law, and outside of the penal statutes of the Republic and State, for the prosecution of persons for what were designated as offenses at common law, but which were not made penal by our statutes. Article 3 was not intended and cannot be legitimately construed to mean that resort may not be had to other systems for illustration, or in aid of the construing any doubtful or uncertain provision of the Criminal Code. If, however, the intention of art. 3 is that contended for by appellee's counsel, its force no longer exists. The act of February 12, 1858, art. 4 of the Criminal Code, declares that, “The principles of the common law shall be the rule of construction, when not in conflict with the Penal Code or Code of Criminal Procedure, or with some other written statute of the State.” The force of the objection, based on art. 3, is destroyed when taken in connection with art. 4; and apart from this, when it is considered that the framers of the code and of art. 3 were the same persons who framed art. 404, under which the defendant was indicted, they certainly cannot be considered as framing a prohibition in one article, and in another declaring an offense which, as contended on behalf of appellee, comes within the meaning of that prohibition. Art. 3 was before them, present in their minds; and the ability displayed by them, and their fidelity in carrying out their allotted task, are the best assurances that the power to comprehend and the desire to perfect their work did not lead them into the absurdity of affixing a punishment to that which they had failed in clear and intelligible terms to declare to be an offense.

The fallacy of the argument, with reference to the supposed failure in art. 404 to define the offense of establishing lotteries and disposing of property by the same, is apparent from a comparison of it with a class of offenses of a kindred character. Art. 409 punishes as an offense the playing at any game with cards at any house for retailing spirituous liquors, &c., &c. Art. 412 declares it an offense “if any person shall keep or exhibit, for the purpose of gaming, any gaming table or bank, * * * or (who) shall be in any manner interested in keeping or exhibiting such table or bank,” &c. Art. 413 declares that it is intended to include, under art. 412, any and all games which, in common language, are said to be kept, dealt, or exhibited. Art. 414 declares that “faro,” “monte,” “viente un,” “rouge et noir,” “roulette,” “A, B, C,” ““chuck-luck,” “keno,” “pool,” and “rondo,” and every other game within the meaning of the two preceding articles, are prohibited. Art. 428 declares it an offense to bet at any gaming table or bank such as were in the six preceding articles mentioned.

In the five articles of the code referred to there is no specific description of any of the offenses. There is no definition of what is meant by “playing at any game with cards.” We have no definition of what is intended by the term “shall keep or exhibit, for the purpose of gaming, any gaming table or bank,” or “shall be in any manner interested in keeping or exhibiting such table or bank.” We are not informed by art. 413 what is meant by “dealt, kept, or exhibited.” Neither is there, in art. 414, or in any other article of the code, any explanatory description or definition of what constitutes or in what consists the offense of keeping, or exhibiting, or betting at any one of the ten games enumerated in art. 414. They are simply denounced as offenses; and it is not assuming too much to say that art. 404, prohibiting and punishing the establishing of a lottery, or the...