Territory v. Davenport

• Court: New Mexico Supreme Court
• Writing for the Court: HANNA, J. (after stating the facts as above).
• Citation: Territory v. Davenport, 17 N.M. 214, 124 P. 795, 1912 -NMSC- 23 (N.M. 1912)
• Decision Date: 15 May 1912
• Parties: TERRITORY v. DAVENPORT.

124 P. 795

17 N.M. 214, 1912 -NMSC- 023

TERRITORY v. DAVENPORT.

Supreme Court of New Mexico

May 15, 1912

Syllabus by the Court.

Baseball does not come within the class of "sports" prohibited on Sunday by section 1368, C. L. 1897.

The common-law rule for the construction of criminal statutes being in force in New Mexico, such statutes must be strictly construed, according to their letter, and nothing must be regarded as being included within such a statute that is not both within its letter and spirit.

By the use of the words "horse racing and cock fighting" the Legislature pointed out the class of sports which it intended to prohibit, and baseball, not being in the same class of sports, is not prohibited.

Section 1368, C. L. 1897, does not forbid engaging in a public exhibition or public meeting, but makes it an offense only to attend such public meeting or exhibition.

Playing baseball does not constitute labor within the meaning of said section 1368.

Baseball is essentially and naturally in the nature of amusement, both for the participants and spectators, and is far removed from the ordinary meaning of the word "labor."

Appeal from District Court, Curry County; before Justice W. H. Pope.

Thomas M. Davenport was convicted of violating the Sunday Law, and appeals. Reversed and remanded.

Harry L. Patton and Henry G. Coors, both of Clovis, for appellant.

Frank W. Clancy, Atty. Gen., for the Territory.

HANNA J. (after stating the facts as above).

The information charged the defendant with having engaged in a game of baseball on Sunday, and that he thereby violated section 1368, C. L. 1897, in three particulars, viz.: First that it was such sport as constituted a violation of the statute; second, that it constituted attendance at a public meeting; and, third, that it constituted labor. Section 1368 is as follows: "Any person, or persons who shall be found on the first day of the week, called Sunday, engaged in any sports, or in horse racing, cock fighting, or in any other manner, disturbing any worshiping assembly, or private family, or attending any public meeting, or public exhibition, excepting for religious worship or instruction or engaged in any labor, except works of necessity, charity or mercy, shall be punished," etc. Penal statutes are to be strictly construed, and the courts all uniformly so hold. It is true in some of the states this rule has been abrogated by statute, but in New Mexico we have no statute authorizing us to depart from the strict rule of the common law in this respect.

Hence we must give to the statute now under consideration a strict construction, according to its letter, and nothing must be regarded as being included within it that is not both within the letter and spirit of the statute. "And where a statute of this kind contains such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that which operates in favor of life or liberty is to be preferred." Lewis' Sutherland Statutory Construction (2d Ed.) § 520. The above statute is peculiarly worded, and from our research we have been unable to find a similar statute in any other state. Its meaning and intent are not clear, and it is very ambiguous. The Legislature of New Mexico should enact a statute upon Sunday observance that would plainly express the prohibited acts, so that the people would be able to know, without construction by the courts, what it was intended to prohibit. Courts cannot enact laws and are limited simply to their construction and interpretation, and under well-defined rules. To sustain the judgment of the lower court, upon the first count of the information, we would be compelled to hold that the Legislature intended to prohibit all "sports" on the Sabbath day, however innocent or harmless they might be. Can it be that the Legislature, by the use of the word, intended to so limit and restrict the liberty of the people? To so hold would be to prevent members of a family from engaging in a game of croquet, tennis, or golf, or other like sports; in fact, would, instead of making Sunday a day of rest and relaxation from business and labor, and a day to be looked forward to with pleasure, cause the people to regard it as a day to be dreaded, for fear they might be haled into court and fined for infraction of the law.

We think the lawmakers, by the use of the words "horse racing or cock fighting," pointed out the class of sports which they intended to prohibit, and that they intended to prohibit only such sport as tended to immorality. It is well known that horse racing and cock fighting by reason of the fact that a purse is usually paid to the owner of the winner, and that gambling and betting sometimes attend such sports, are generally considered immoral. Ex parte Hull 18 Idaho 475, 110 P. 256, 30 L.R.A. (N. S.) 465. In the case of State v. Prather, 79 Kan. 513, 100 P. 57, 21 L.R.A. (N. S.) 23, 131 Am.St.Rep. 339, the Supreme Court of Kansas, in discussing the question as to whether baseball was prohibited by a statute which prohibited all "games" on the Sabbath day, said: "In the broad sense in which the word is often used it includes baseball. Giving the statute this interpretation, the statute applied to every contrivance or institution which falls within the general term. This construction would make the statute apply to every...