Swigart v. People

• Citation: 40 N.E. 432,154 Ill. 284
• Parties: SWIGART v. PEOPLE.
• Decision Date: 15 January 1895
• Court: Illinois Supreme Court

154 Ill. 284

40 N.E. 432

SWIGART

v.PEOPLE.¹

Supreme Court of Illinois.

Jan. 15, 1895.²

Appeal from appellate court, First district.

Indictment of Joseph Swigart for keeping a gaming house. Defendant was convicted, and the judgment was affirmed by the appellate court. 50 Ill. App. 181. Defendant appeals. Affirmed.

Knight & Brown, for appellant.

H. Rubens, for the People.

PER CURIAM.

Joseph Swigart was arrested upon a warrant charging him and others with keeping a common gaming house, in a building, booth, yard, etc., by him or his agent used and occupied, and permitting persons to frequent and come together to play for money and other valuable things, and knowingly renting such place for such purpose. No objection is made that the complaint and warrant do not sufficiently charge the offenses enumerated in section 127 of the Criminal Code. On trial before the justice of the peace defendant was found guilty, and a fine of $100 imposed. An appeal was taken to the criminal court of Cook county, where a jury was waived, and the cause submitted to the court. Hearing the testimony, the court again found the defendant guilty, and, motion for a new trial having been overruled, he was sentenced to pay a fine of $100 and costs. The case having been taken to the appellate court, the judgment was there affirmed.

A sufficient statement of the facts is that the Garfield Park Club is an incorporated company. The object for which it was formed was shown to be ‘to establish and maintain a driving park and race track, where running, trotting, and other meetings may be held, to develop speed and endurance in thoroughbred horses; and also to hold fairs and horse shows, fat-stock and other exhibitions, and entertainments of all kinds, at such driving park.’ The company rented a tract of land adjacent to the city of Chicago, and inclosed it with a fence 10 or 12 feet high. Within this inclosure is a race track, shed, engine house, and electric light plant, a grand stand, restaurants,etc. The club conducted horse races during the years 1891 and 1892, there being from five to seven races daily, excepting Sunday, at which an average of $3,000 per day was paid out as prize money on races. On Derby day there was a purse of $20,000. The prizes were all paid by the club. On Derby day the attendance was between 30,000 and 40,000 people, the average daily attendance being about 6,000. Swigart was secretary of the racing department of the Garfield Park Club, and had charge of the races, in conjunction with others. A part of the revenue of the club was obtained from space and privileges rented to bookmakers and pool sellers, the average number of the former being about 30 a day. These parties had their places in what is called the ‘betting room,’ located under the grand stand, and it seems paid for each stand $100 daily. The place where the betting was going on was covered, but was open on the sides, so that any one going into the grand stand had free access to it. It was about 100 feet long and 75 feet wide. The grand stand incloses it on one side, and the restaurant is at one end. On the east, underneath the grand stand, it was open, and, when parties were at the east side of where the bookmaking and pool selling was going on, they came in view of the horses on the track. This was sometimes called ‘the betting room,’ and sometimes ‘the betting ring.’ Bookmaking was there carried on, not only upon the events and races to be run on the Garfield Park track, but also upon races taking place, or about to take place, on other tracks. The races outside, upon which pools were sold and books made, were known as ‘foreign races.’ Pools were also sold upon races upon the Garfield track, and also upon races upon other race tracks. No question is made of the defendant's liability for the acts committed, or of his guilt, if such acts are punishable under the section of the statute.

Section 127 of the Criminal Code (chapter 38) provides: ‘Whoever keeps a common gaming house, or in any bilding, booth, yard, garden, boat or float by him or his agent used and occupied procures or permits any persons to frequent, or to come together to play for money or other valuable thing, at any game, or keeps or suffers to be kept any tables or other apparatus for the purpose of playing at any game or sport for money, or any other valuable thing, or knowingly rents any such place for such purposes, shall upon conviction, for the first offense be fined not less than $100.00, and for the second offense be fined not less than $500.00, and be confined in the county jail not less than six months, and for the third offense shall be fined not less than $500.00, and be imprisoned in the penitentiary not less than two years not more than five years.’

That bookmaking and pool selling are each betting upon the horse race, or particular event upon which they are made or sold, is not questioned. In the first, the betting is with the bookmakers; in the second, the betting is among the purchasers of the pool, they paying a commission to the seller. See James v. State, 63 Md. 242, and Com. v. Simonds, 79 Ky. 618, where the various methods of pool selling are shown. It is shown that in the part of the premises called the ‘betting room’ or ‘betting ring’ stands were leased to bookmakers and pool sellers for the purpose of carrying on the business. It is shown that large numbers of persons were present, and permitted to assemble within said room, during the racing season and meetings of the association, who did bet upon the result of races taking place upon the track of the Garfield Park Club, and also upon other race tracks, in and out of the state; that is, that books were made and pools sold upon races run at Brighton Beach, in the state of New York, and at Guttenberg, in the state of New Jersey, and at other places. We do not understand counsel to insist that the place where this was permitted does not fall within the designation of ‘place’ in the section of the statute quoted. It is, however, clear that it was a building and yard, within the contemplation of the section quoted. The question submitted is thus stated by counsel for defendant: ‘Do the acts shown make the officers and agents of the club guilty of keeping a common gaming house, or of procuring or permitting persons to frequent and come together to play for money or other valuable thing, or of knowingly renting for such purposes, within the meaning of the statute?’

It is said that, in construing penal statutes, general words, following a specific enumeration of objects and things which are prohibited, will be held to include only such things as are of the same kind as those specifically enumerated; and Shirk v. People, 121 Ill. 61, 11 N. E. 888, and other cases, are cited as sustaining the contention. We recognize the rule contended for, but it can have no application, either to section 127, considered by itself, or when read in connection with section 126, which defines and prescribes punishment for gambling. Indeed, there is no enumeration of specific subjects or things in section 127 which necessitates or could suggest the application of the rule ejusdem generis. Section 126 is as follows:

‘Sec. 126. Whoever shall play for money, or other valuable thing, at any game with cards, dice, checks or at billiards, or with any other article, instrument or thing whatsoever, which may be used for the purpose of playing or betting upon, or winning or losing money or any other thing or article of value, or shall bet on any game others may be playing, shall be fined not exceeding $100.00 and not less than $10.00.’

Here we find the enumeration of certain articles or things, as cards, dice, checks, and billiards, that are necessarily wholly dissimilar in themselves and in the manner of their use, but all of which introduce the element of chance or hazard in determining the result of games played with them. The things or instruments enumerated are not of the same kind, and have nothing in common, either in themselves or in their use, except that they are each used in playing games, and money or other valuable thing may be wagered upon the result of such games. If, as contended, the rule required that the article or thing referred to in the general words of the section must be of the same kind as the articles and things specifically enumerated, it is apparent that gambling with many devices must be excluded. Under which description would the wheel of fortune and similar devices fall? Manifestly under neither cards, dice, checks, nor billiards. But, as before said, each of the modes of gambling specifically enumerated,-that is, with cards, dice, checks, or billiards,-have common grounds of resemblance; that is, the articles or things named may be used in gaming, the element of chance or hazard is, to a greater or less extent, introduced, and money may be won or lost as the result. The statute does not prohibit the playing of cards, dice, checks, or billiards. The playing of games of either is entirely lawful, and it is only when they are made the instruments of winning or losing money or property that a criminal character attaches to their use. And it was this element in the use of cards, dice, and billiards, and ‘any other article, instrument, or thing,’ that the legislature had in contemplation, and against which the enactment is directed, and it is this quality alone that designates the article or thing which must be held to be included within the general words of the section. The language is plain and unambiguous. It is not intended to prohibit games of cards, the running of horses, or playing billiards; but it is intended to and does prohibit every person from playing any game for money or other valuable thing, at or with any article, instrument, or thing whatsoever, which may be used for the purpose of losing or winning money, or any article or thing of value.

It is, however, said that horse racing is not a ‘game...