The State v. Oldham

• Decision Date: 22 December 1906
• Citation: 98 S.W. 497,200 Mo. 538
• Parties: THE STATE v. CHARLES OLDHAM, Appellant
• Court: Missouri Supreme Court

98 S.W. 497

200 Mo. 538

THE STATE v. CHARLES OLDHAM, Appellant

Supreme Court of Missouri, Division Two

December 22, 1906

Appeal from Jackson Criminal Court. -- Hon. B. J. Casteel, Special Judge.

Reversed.

Walsh & Morrison and Harkless, Crysler & Histed for appellant.

(1) The act of 1905, page 131, prohibited (first) any person from keeping a room, tenement, shed, booth or building within the State of Missouri and from occupying the same with any book instrument or device for the purpose of recording or registering bets or wagers. Second. It prohibited any person from recording or registering a bet or wager within this State, whether the race was to take place within or without the State. Third. It prohibited the owner, lessee, occupant or person in charge of any room, tenement, etc., within this State, from permitting the same to be used for registering or recording bets. Fourth. It prohibited the owner, lessee occupant, or person in charge of any room, tenement, shed, booth or building within this State, to therein keep, exhibit, use or employ any device or apparatus for the purpose of recording such bets, as hereinabove set forth. Laws 1905, p. 131. (2) A citizen of this State, of course, cannot be convicted because he kept a book or registered or recorded bets outside of the State. State v. Gritzner, 134 Mo. 512; Owen v. State, 85 S.W. 794; State v. Shaeffer, 89 Mo. 271; Works, Courts and Jurisdiction, 471; State v. Saunders, 19 Kan. 127; Williams v. Fenniman, 14 Kan. 288. (3) The court submitted the question to the jury on the fourth subdivision above mentioned, which reads, "or therein keeps, exhibits, uses or employs any device or apparatus for the purpose of recording such bets or wagers, as hereinabove set forth." This theory is challenged upon two grounds: 1. That neither the telephone, the blackboard nor the numbered tickets were devices or apparatus for the purpose of recording bets or wagers; and 2. That "such bets or wagers" referred to are bets and wagers made as a result of recording and registering in some place in the State of Missouri, and that the expression, "such bets or wagers as hereinabove set forth," refer only to the ones theretofore mentioned, to-wit, bets and wagers founded upon bookmaking or recording or registering within the State of Missouri. (4) The act in question was levelled against and only against the keeping of a book or the registering or recording of bets within the State and the devices and apparatus must be such as pertain to recording or registering within the State. Stanley v. Railroad, 100 Mo. 435; Said v. Stromberg, 55 Mo.App. 438.

Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.

(1) Courts will not permit the purpose of a salutary criminal statute to be defeated by a resort to a subterfuge. State v. Townsend, 50 Mo.App. 690; State v. Kentner, 178 Mo. 487; Williams v. State, 92 Tenn. 275; Ransome v. State, 91 Tenn. 717; State v. Thompson, 8 Ohio S. & C. Pl. Dec. 682; Regina v. Osborne, 27 Ontario 185; People v. Barbour, 5 N. Y. Cr. Rep. 381; Ames v. Kirby, 59 A. 558; Murphy v. Board of Police, 11 Abbott's New Cases 337. (2) The act of March 21, 1905, prohibits, not only the registering of bets in Missouri, but it denounces as well the occupation of any betting booth in Missouri with devices for the purpose of registering bets anywhere, either within or without the State. (3) Subject to the Constitution of the United States and of the State, the Legislature has the right to make any act committed in Missouri a crime if it deems that act contra bonos mores. State v. Sattley, 131 Mo. 484; Ex parte Roberts, 166 Mo. 207. (4) Interstate commerce can be lawfully interfered with by the provisions of a statute passed under the police power of the State. Lacey v. Palmer, 93 Va. 159; State v. Harbourne, 70 Conn. 484; State v. Stripling, 113 Ala. 120; Ames v. Kirby, 59 A. 560; Hennington v. Georgia, 163 U.S. 299; Kidd v. Pearson, 128 U.S. 1; Railroad v. Haber, 169 U.S. 613; Plumley v. Massachusetts, 155 U.S. 461; Geer v. Connecticut, 161 U.S. 519.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the 25th of May, 1906, the grand jury of Jackson county returned an indictment against the defendants, Charles Oldham and J. S. Gardner, for alleged violation of the act of March 21, 1905, Laws 1905, p. 131, which is entitled, "An Act prohibiting book-making and pool-selling, and prescribing a penalty therefor." The indictment contains five counts. The first count in the indictment charges the defendants with making and selling what is commonly called a book and pool, upon a certain horse race to be made and to take place thereafter on the 19th of May, 1906, to one Con Cronin, and divers other persons. The second count charges that the defendants on the 19th of May, 1906, did feloniously, unlawfully and knowingly in Jackson county, Missouri, register and record a bet and wager with the said Con Cronin upon a certain horse in the race thereafter to be run on the said day. The third count charges that the said defendants at the county of Jackson and State of Missouri, on the 19th of May, 1906, did then and there unlawfully and feloniously keep a room, shed, tenement, booth and building, at and on the premises known as the Elm Ridge Race Track, located at or near Sixty-third street and Lydia avenue in Kansas City, Jackson County, Missouri, and did then and there unlawfully and feloniously keep said room, shed, tenement, booth and building with books, instruments, and devices, to-wit, blackboards, telephones, telegraph instruments, admission cards bearing numbers, and other instruments, books and devices, a more particular description of which is to the grand jurors unknown, for the purpose of recording and registering bets and wagers and selling pools upon the result of a trial of contest of speed, skill or power of endurance between certain beasts, to-wit, horses named as follows, to-wit: Baby Branch, T. Jo, Pauline Cobbs, Pat Kennedy and Castle Gregory, which said contest was to be made and take place thereafter at said Elm Ridge Track aforesaid in the county and State aforesaid on the afternoon of the said 19th day of May, 1906, against the peace and dignity of the State.

The fourth count is in words and figures as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, present and charge that Charles Oldham and J. S. Gardner, at the county of Jackson, State of Missouri, on the 19th day of May, 1906, did then and there being the owners, lessees, occupants and persons in charge of a room, tenement, shed, booth and building located on the premises known as Elm Ridge Race Track, near the intersection of the streets commonly called Sixty-third and Lydia streets, in Kansas City, Jackson county, Missouri, did then and there at the county of Jackson, State of Missouri, unlawfully, knowingly and feloniously permit said rooms, tenements, shed, booths and building to be used and occupied with a book, blackboard, telephone instrument, telegraph instrument, numbered tickets of admission, pencils, pens and ink and other instruments and devices, a more particular description of which is to the grand jurors unknown, which said books, instruments, devices, to-wit, the book, blackboard, telephone instruments, telegraph instruments, numbered tickets of admission, pencils, pens, ink and other instruments, a more particular description of which is to the grand jurors unknown, as aforesaid, were then and there for the purpose of recording and registering bets and wagers and selling pools upon the result of a trial and contest of skill, speed and power of endurance of beasts, to-wit, certain horses named Baby Branch, T. Jo, Pauline Cobbs, Pat Kennedy and Castle Gregory, which said contest was to be made and take place thereafter at said Elm Ridge Race Track aforesaid, on the afternoon of said 19th day of May, 1906, against the peace and dignity of the State."

The fifth count after charging in a general way that the defendant did then and there on the 19th day of May, 1906, at the county of Jackson, keep said room, shed, booth, tenement and building with a book, instrument and device, to-wit, a book, telegraph instrument, telephone instrument and blackboard, etc., for the purpose of recording bets and wagers and selling pools on the said horse race, proceeded to charge that the defendants did unlawfully and feloniously become the custodian and depository for hire and privilege of divers sums of money from divers persons which sums of money were then and there deposited with defendants as bets and wagers between divers persons upon the said horse race.

The defendants were duly arrested and arraigned on the 26th day of May, 1906, and entered their plea of not guilty. Judge Wofford, the regular judge of the court, disqualified himself and called Hon. B. J. Casteel, judge of the criminal court of Buchanan county. Thereafter on the 8th day of June, 1906, Judge Casteel appeared and proceeded in the case. A jury was empanelled, and duly sworn, and at the close of the evidence, the defendant Gardner, under the instruction of the court, was discharged, but the defendant Oldham was convicted on the fourth count in the indictment, and his punishment assessed at a fine of five hundred dollars. Thereupon the defendant in due time filed his motion for new trial and in arrest of judgment, both of which were overruled and the defendant was sentenced in accordance with the verdict of the jury. An appeal was granted the defendant to this court, and the bill of exceptions was duly allowed and filed.

The evidence on the part of the State tended to prove horse races were run at the Elm Ridge Race Track on the 19th of May 1906. This race track...