State v. Towner

• Decision Date: 03 March 1902
• Parties: STATE v. TOWNER.
• Court: Montana Supreme Court

67 P. 1004

26 Mont. 339

STATE v. TOWNER.

Supreme Court of Montana

March 3, 1902

Appeal from district court, Silver Bow county; J. B. McClernan Judge.

T. O Towner was convicted of gambling, and appeals. Affirmed.

C. M Parr, R. B. Smith, G. M. Sinclair, and W. H. Levy, for appellant.

James Donovan, Atty. Gen., for the State.

MILBURN J.

Defendant was convicted of a violation of section 2 of the act of the legislature approved March 15, 1901, respecting gambling. He was sentenced to pay a fine of $100, and to be imprisoned in the county jail until the fine was paid, the imprisonment not to exceed one day for every $2 of said fine. He appeals from the judgment.

He assigns as error that the court erred in entering judgment. He inquires: "Did the trial court err in sentencing the defendant to imprisonment at the rate of two dollars per day?" Having argued that this question, which is quoted must be answered in the affirmative, appellant concludes that the judgment is absolutely void. The validity of the statute is thus attacked, but whether in whole or in part there is no specification to indicate. In the argument, however, we find this language: "Therefore we contend that the judgment of the court pronounced in this cause is absolutely void, and that, so far as the provisions of this act referring to the method of enforcing the payment of the fines prescribed is concerned, the act is unconstitutional and void in that respect." The argument, extending over all of the 37 pages of the brief, excepting 2 pages of statement, is devoted to an attempt to show that the passage of section 1 of the act of 1897, as to gambling, providing that one fined for a violation of the section "must be imprisoned until such fine and costs are paid, such imprisonment not to exceed five years in the state penitentiary," had the effect of repealing, so far as gambling is concerned, section 2224 of the Penal Code of 1895; and that the repealing of the act of 1897 did not reenact said section 2224; and, further, that the present act of 1901, so far as it provides that "every person convicted of a violation of section 2 of this act must be imprisoned until such fine and costs are paid," is unconstitutional and void, said term of imprisonment being perpetual in the case of those unable to pay. Section 2224 of the Penal Code of 1895 is as follows "A judgment that the defendant pay a fine and costs may also direct that he be imprisoned until both fine and costs are satisfied, specifying the extent of the imprisonment, which must not exceed one day for every two dollars of the fine and costs." We do not believe that the enactment of the statute of 1897, supra, providing in section 1 that the defendant, if convicted, should be imprisoned until the fine and costs are paid, such imprisonment not to exceed five years in the state penitentiary, repealed section 2224 in any wise. It is better to say that, if it affected section 2224 at all, it excepted the judgment under said section of the gambling law from its operation. If the act of 1897 excepted gambling cases as a class from the operation of said section 2224, we are of the opinion that after the repeal of the statute of 1897, making the exception, the general statute, which was in force all the time, would then be applicable to all cases according to its terms, as is held in Smith v. Hoyt, 14 Wis. 252, and Goodno v. City of Oshkosh, 31 Wis. 131. The repealing of the exception would leave no exception. The section (2224) permits the court, after adjudging a defendant to pay a fine, to direct that he be imprisoned until both fine and costs are satisfied, specifying the extent of the imprisonment, which must not exceed one day for every $2 of the fine and costs. Upon the question whether said section now applies to the mode of enforcing the collection of the fine and costs under the...