State v. Tobin

• Decision Date: 03 June 1924
• Docket Number: 1186
• Citation: 31 Wyo. 355,226 P. 681
• Parties: STATE v. TOBIN
• Court: Wyoming Supreme Court

226 P. 681

31 Wyo. 355

STATE v. TOBIN

No. 1186

Supreme Court of Wyoming

June 3, 1924

APPEAL from District Court, Natrona County; ROBERT R. ROSE, Judge.

R. S Tobin was convicted of a violation of gaming laws, and he appeals.

Reversed and Remanded.

M. F Ryan, for appellant.

This case follows within the rule announced in State v Peterson, and State v. Romano, 27 Wyo. 244 as to unauthorized seizures; see also State v. Court (Mont.) 198 P. 363; where the prosecution files a complaint before a Justice it cannot be abandoned by filing a direct information without the consent of defendant. Appellant's plea in abatement should have been sustained, 12 Cyc. 355. The motion in arrest of judgment should have been sustained, no offense being charged; 3389 C. S. is unconstitutional; Art. III, Sec. 24. The game of poker is not prohibited by law; the information does not state what stakes were played for; section 3389 C. S. as originally enacted related to gaming licenses (2178 R. S. 1899) no other subject was expressed in the title. The amendment changed the subject without changing the title; the act is void, Lewis' Suth. Stat. Const. Sec. 120. The amendment is not germane to the subject of the original act, and is void, Ex Parte Cowert, (Ala.) 9 So. 225; Board v. Aspen M. & S. Co. (Colo.) 32 P. 717; Dolese v. Pierce, (Ill.) 16 N.E. 218; State v. Sugar Co., (La.) 31 So. 186; State v. Cornell, (Neb.) 74 N.W. 432; State v. Bowen (Neb.) 74 N.W. 615; State v. Tibbetts, (Neb.) 71 N.W. 990; Armstrong v. Mayer, (Neb.) 83 N.W. 401; People v. Fleming, (Colo.) 3 P. 70; Mack v. State, (N. J.) 36 A. 1088; Astor v. Railway Co., (N. Y.) 20 N.E. 594; Kennedy v. Le Moyne, (Ill.) 58 N.E. 903. Gambling is a statutory crime and the acts must be within the legislative intent; the doctrine of ejusdem generis applies, State v. Walsh, 43 Minn. 444, 45 N.W. 721; Lewis' Suth. Stat. Const. 816. The information is indefinite, People v. Carroll, 22 P. 129, Anthony v. State, 23 Tenn. 83; exhibits unlawfully seized were improperly received in evidence; the court erred in refusing defendant's requested instruction for a directed verdict. The court erred in giving instruction No. 3; Fields v. Territory, 1 Wyo. 78, State v. Jones, 27 Wyo. 46; State v. Wells, (Wyo. decided March 6, 1923), Wickard v. State, 109 A. L. A. 45; the court erred in giving instructions numbered 6 and 8; the court erred in refusing defendant's requested instruction defining an accomplice, Smith v. State, 10 Wyo. 157, also as to the rule requiring corroboration of an accomplice, Clay v. State, 15 Wyo. 42, and in refusing defendant's requested instruction as to weight of certain evidence.

David J. Howell, Attorney General and E. H. Foster, Prosecuting Attorney for the State.

The rule announced in the Peterson case is not applicable here; the warrant was lawfully issued upon proper affidavit. There was no violation of rights guaranteed by Article I, Section 4, Const.; moreover the officer had authority to arrest for an offense committed in his presence, 1615 1616 C. S., the evidence showed the commission of an offense in the presence of the officer and he had authority to seize property used in connection with the offense for which the arrest was made, Wiggin v. State, 206 P. 376, 28 Wyo. 480; State v. Mausert, 95 A. 991; State v. Brown, (Wash.) 145 P. 69; Gatchell v. Page 69 A. 624; 5 Corpus Juris 434; Holker v. Hennessey, (Mo.) 42 S.W. 1090; State v. Edwards, (W. Va.) 41 S.E. 429; People v. Cona, (Mich.) 147 N.W. 525; Smith v. Jerome, 93 N.Y.S. 202; State v. Rassan, (Ia.) 128 N.W. 960; Yeoman v. Comm. (Ky.) 224 S.W. 660; State v. Quinn, (So. C. ) 97 S.E. 62; North v. People, (Ill.) 28 N.E. 966. A violation of Section 3389 C. S. is a misdemeanor; preliminary hearings relate to felonies 7431 C. S.; Nicholson v. State 24 Wyo. 354. The plea in abatement was insufficient, 1 C. J. 28, 107; denial of defendant's motion in arrest of judgment is not properly assigned as error, Hall Oil Company v. Barkman, 28 Wyo. 152; error in denying defendant's motion in arrest of judgment is urged on three grounds, (a) invalidity of the statute 3389 C. S. for want of title; (b) that the game of poker is not prohibited by law, (c) that the information is indefinite and uncertain; the gaming license, Sections 2178, 2180, 2183 R. S. 1899 were amended and other sections of the act repealed by Chapter 65, Laws 1901. The title of the amendatory act showed its purpose and was sufficient; the statute clearly shows an intention to include the game of poker. Objections to the form of the information were waived by defendant in not moving to quash, 7483 and 7487 C. S., Kappola and Lampe v. State, 15 Wyo. 418; errors alleged in the acceptance or rejection of evidence are insufficiently stated and do not comply with supreme court rule 14 requiring a statement of points and authorities, and hence the rulings of the trial court are presumed to be correct, 3 Corpus Juris page 1428; Chestnut & Smith v. Lynch (Okla.) 202 P. 1018; Fallon v. Sockolove, (Cal.) 202 P. 909; Meister v. Harrison, (Cal.) 206 P. 106; Hurt v. Mining Co., (Id.) 206 P. 184; Gosliner v. Briones (Cal.) 204 P. 19; Cornner v. Hamilton (Mont.) 204 P. 489; Amer. Cigar Co. v. Berger, 221 Ill.App. 292; Riley v. So. Pac., (Cal.) 207 P. 704; Winterton Co. v. Gum Co., 211 F. 618; Blue v. Brd. of Comm'rs., (Okla.) 198 P. 851; no exception was reserved to the denial of defendant's motion for a directed verdict. Errors alleged in the giving of instructions are unsupported by points or authorities; instruction numbered 1 is sufficient under 7462 C. S.; an examination of the others shows that they clearly state the law, and that the authorities relied on in respect thereto, are not in point. Errors alleged in refusing to give instructions requested by defendant as to the evidence of an accomplice, are insufficiently stated, moreover the instruction requested is not a correct statement of the law; the question was not involved in Clay v. State, 15 Wyo. 60, for reasons stated in the opinion; specification of error No. 8 is not sufficient in form to present a question for the consideration of the court.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The defendant in this case was convicted of violating the provisions of sections 3389 and 3391 W. C. S. 1920, relating to gambling, and he appeals.

1. The first act passed in this state in relation to gambling was Chapter 27 of the laws of 1869, entitled "An Act restricting gaming." Sections 1, 5, and 8 of that act, in so far as pertinent here, read as follows:

"Sec. 1. Each and every person who shall deal, play, carry on, open or cause to be opened, or who shall conduct either as owner or employe, whether for hire or not, except under a license as hereinafter provided, any game of faro, monte, roulette, lansquenette, rondo, vingt-un, commonly known as twenty-one, keno, props, or any banking game played with cards, dice, or any other device, whether the same be played for money, checks, credits, or any other representatives of value, shall be guilty" etc.

"Sec. 5. Every person who shall permit any of the games mentioned in the first section of this act to be played, conducted, dealt, or carried on in any house, tent, booth, or shed, owned and occupied by him or her, in whole, or in part, except by a person who has received a license as herein provided, and in the room described therein, shall be guilty" etc.

"Sec. 8. The following games and no others shall be licensed under or by virtue of the provisions of this act, viz: faro, monte, keno, rondo, lansquenette, roulette, vingtun, commonly known as twenty-one, and props, and that any person or persons who shall keep or deal or permit to be kept or dealt, in any building or place under his or their control, any other banking game or other games of chance for money, or other representation of value, played with cards or other devices, shall be deemed guilty" etc.

These sections remained the law of this state until 1901, and were contained in the Revised Statutes of 1899 as sections 2178, 2183 and 2185. In 1901, the legislature of this state passed chapter 65 of the Session Laws of that year, entitled "an act to amend and re-enact sections 2178, 2180 and 2183 of the Revised Statutes of 1899, and to repeal sections 2179, 2181, 2182, 2185, 2186, 2188 of the Revised Statutes of 1899, relating to gaming." Section 1 of said act (now section 3389 W. C. S. 1920) struck out of the original act the phrase "except under a license as hereinafter provided" and the phrase "banking games" and reads as follows:

"Every person who shall deal, play, carry on, open, or cause to be opened, or who shall conduct, either as owner or employe, whether for hire or not, any slot machine, game of faro, monte, roulette, lansquenette, rondo, vingt-un, commonly known as twenty-one, keno, props, or any other game played with cards, dice or other devices of whatever nature, for money, checks, credit, or other representatives of value, shall be guilty" etc.

Section 3 of the act of 1901 (now section 3391 W. C. S. 1920) struck out of the original section (section 5, act of 1869, section 2183, R. S. 1899) the phrase "except by a person who has received a license as herein provided or his employee," and otherwise left the original section intact. It is thus seen that two material amendments were made to the original act, the first striking out all provisions in regard to licensing the dealing, carrying on and conducting of gambling games, and the second striking out the phrase "banking games," thus including in the prohibition of the new act each and every game played as therein mentioned.

It is the contention of counsel for defendant that the act of 1901 is in violation of...