Tobin v. State

• Decision Date: 03 May 1927
• Docket Number: 1357
• Citation: 255 P. 788,36 Wyo. 368
• Parties: TOBIN v. STATE [*]
• Court: Wyoming Supreme Court

255 P. 788

36 Wyo. 368

TOBIN v. STATE ^[*]

No. 1357

Supreme Court of Wyoming

May 3, 1927

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

R. S Tobin was convicted of permitting a gambling game known as twenty-one, and he brings error.

See also, 31 Wyo. 355, 226 P. 681.

Reversed and Remanded.

E. E Enterline, for plaintiff in error.

Principles decided by the appellate court, in the case, are binding, where the evidence in the second trial is substantially the same; Haley v. Kilpatrick, 104 F. 647; Town v. Hickman, 208 F. 118; Easterly v. Jackson, 92 P. 480; McEwen v. Ins. Co., (Cal.) 201 P. 577; Ingals v. Smith, (Kan.) 167 P. 1040; Powell v. Co., 231 P. 307. The doctrine is the same when applied to civil cases; Wellman v. State, (Ga.) 29 S.E. 761; Stephens v. State, (Ga.) 32 S.E. 344; State v. Morrison, (Kan.) 72 P. 554. There is no error in giving an instruction approved by a former appeal; Ross v. Comm. (Ky.) 59 S.W. 28. It is error to give an instruction condemned on a former appeal; Selby v. Comm. (Ky.) 89 S.W. 296. Where the evidence in a subsequent trial is the same as the first, a rule on it is sufficient for the law of the case; Argobright v. State, (Neb.) 87 N.W. 146; Carstenson v. Brown, (Wyo.) 236 P. 517; State v. Tobin, 31 Wyo. 355. The court erred in denying defendant's petition for the return of property; Sec. 3394 C. S.; Peterson v. State, (Wyo.) 194 P. 342; Wiggin v. State, (Wyo.) 206 P. 373; State v. George, (Wyo.) 231 P. 683; McFadden on Prohibition, Sec. 36, 42-43. The court erred in receiving testimony of other offenses than the offense charged; Fields v. Territory, 1 Wyo. 78; State v. Lowry, 29 Wyo. 251; State v. Wells, 29 Wyo. 335; Johnson v. Comm., (Ky.) 256 S.W. 388; Elliott v. State, (Ariz.) 164 P. 1179. The verdict of the jury is silent on the second count and acquittal thereon is presumed; 27 R. C. L. Sec. 28; State v. Casey, (Mo.) 105 S.W. 645; Bicraft v. People, (Colo.) 70 P. 41; City v. Shepler, (Kan.) 201 P. 78; Jolly v. U.S. 170 U.S. 402. The legislature in amending Section 2178 R. S. 1899 merely struck out the clause "except under a license" and inserted as an additional prohibited game, "any slot machine", and in amending 2183 R. S. 1899 struck out "except by a person who has received a license, etc."; Secs. 3389, 3391 C. S. 1920. It is necessary to examine the history of the law and the decisions in order to gain an understanding of the purpose of the amended enactment; Co. v. City, (Wyo.) 222 P. 1; Dowdy v. Wambel, (Mo.) 19 S.W. 489; Grimes v. Reynolds, (Mo.) 68 S.W. 588; 83 S.W. 1132; People ex rel Dolan, 5 Wyo. 245; requires strict construction of penal statutes; 5532 C. S.; State v. Thompson, 15 Wyo. 135; State v. Hall, (Wyo.) 194 P. 476; State v. Mead, (Wyo.) 240 P. 208. Before a man can be punished, his case must be within the statute; Ex Ex parte Moore, (Ida.) 244 P. 662; U. S. v. Bathgate, 246 U.S. 220; State v. Tuffs, 165 P. 1107. The information must allege either ownership or employment to constitute a crime; State v. Manolis, (Wash.) 221 P. 326. Statutes of a penal character are strictly construed; 5532 C. S. In an information charging an offense, where no specific form is prescribed by statute, every essential ingredient of the offense must be stated; 27 C. J. 1017; McGinnis v. State, 16 Wyo. 72; Hall v. State, (Wyo.) 194 P. 476.

W. O. Wilson, Attorney General and James A. Greenwood, Deputy Attorney General (David J. Howell, former Attorney General, and John C. Pickett, former Assistant Attorney General, on the brief) for defendant in error.

We concede that principles and rules decided on in a former appeal are the law of the case; 4 C. J. 1213. In the former decision reported in 31 Wyo. 371, this court found the information and warrant to be regular; an officer making a lawful arrest may seize such property as he has reason to believe is connected with the offense for which the arrest is made; 1615, 1616 C. S.; and may search a party after a lawful arrest; State v. George, 32 Wyo. 223. An officer making a lawful arrest may seize property connected with the offense; Wiggin v. State, 28 Wyo. 480; State v. Brown, (Wash.) 145 P. 69; Holker v. Kennessey, (Mo.) 42 S.W. 1090; People v. Cona, (Michigan) 147 N.W. 525; Yeoman v. Commonwealth, (Ky.) 224 S.W. 660. A person permitting more than one game, on the same day, could not be prejudiced by the introduction of evidence of different acts; State v. Jackson, (Mo.) 146 S.W. 1166; Martin v. State, (Ala.) 56 So. 64; Rasor v. State, (Tex.) 121 S.W. 512; Stapleton v. State, (Ark.) 97 S.W. 296; State v. Willette, (Mont.) 127 P. 1013; People v. Morani, (Cal.) 236 P. 135; 16 C. J. 574. Section 3389 C. S. makes either an owner or an employee guilty; defendant was convicted under Section 3391 which includes any person who shall permit any game or games to be carried on in any house, tent, booth or shed owned or occupied by him or her; charging that an act was willfully done is sufficient, even though the statute contains the word "maliciously"; State v. Tiffany, (Wash.) 87 P. 932; Edwards v. State, 56 So. 401; Smith v. Farley, 140 N.Y.S. 990. The ordinary meaning of the words "and" and "or" is used interchangeably in construing a statute, when the meaning of the language used is plain that the Legislature intended that the word should be conjunctive and not disjunctive; Abbey v. Board, (Cal.) 209 P. 709; People v. Emerson, (Ill.) 134 N.E. 707; Six Words and Phrases, 1st Series, 5001. It is unnecessary to charge that the games were conducted by defendant as owner or employee; 27 C. J. 1013; People v. Sam Lung, (Calif.) 11 P. 675; Tucker v. State, (Okla.) 191 P. 201; State v. Smith, (Wash.) 108 P. 618. No prejudicial error was committed.

Before BLUME, Chief Justice, ILSLEY, District Judge, and RINER, District Judge. BLUME, C. J., and RINER, District Judge, concur.

OPINION

ILSLEY, District Judge.

This case is here on proceeding in error to review a judgment entered on a conviction of defendant for permitting a gambling game known as twenty-one, as charged in the information under section 3391, W. C. S. 1920.

1. Before the trial of the case in the court below, a petition to suppress the evidence was presented and a hearing had thereon. The defendant claimed that while he occupied the basement of the Becklinger building, the sheriff of Natrona County and some six deputies, without a warrant or authority of the law, entered the basement of the building and unlawfully searched the basement and seized certain articles which were later introduced in evidence on trial; that all of this was in violation of sections 4, 6 and 11 of article 1 of the Constitution of the State of Wyoming. The evidence presented at this hearing fairly shows that Tobin occupied the basement of the Becklinger building; that the sheriff was let into the building, after trying the door, by a man on the inside who was working for Tobin; that no legal warrant was shown or served; that the sheriff was not invited in; that the defendant claimed the place to be a club house. Tobin testified:

"Q. You never made any objection or remonstrances about anything that he did do at the time that he came in, did you? A. Well I recognized him as the sheriff and I didn't think it would help me to make any objection. Q. And therefore you didn't make any? A. No sir."

Defendant claimed that Silver (the man who let the sheriff in) had no authority to let anyone in except members of the club; that he did not invite the sheriff and his men in, and that they were not in his place by his consent. No authority of Silver to let them in was shown or attempted to be shown. The State claimed that the officers had a right to search and seize the gambling paraphernalia because the defendant consented. The question here presented is whether or not the evidence, as above outlined, constitutes a consent of Tobin to the search.

First of all, we believe that a waiver of the citizen's fundamental, constitutional rights must appear by clear and positive testimony, and if the search and seizure are based upon the proposition that consent was given to the officers, there should be no question about it in the evidence submitted.

Every good citizen is to be commended for cheerfully submitting to the laws of the country and for respecting lawfully constituted authority. Even where the citizen knows the officer is wrong or is exceeding his authority, and is placed in a position, by an officer who has assumed to act in his official capacity, of peacefully submitting or resenting such action by force, he ought not, by peaceful submission, be held to have waived his constitutional rights by consenting to a search or an arrest. Such acts ought not to constitute consent to an unlawful arrest, but rather peaceful submission to officers of the law. The courts do not put the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional privileges.

And, therefore, evidence obtained by search can only be used where the testimony clearly shows that the consent was really voluntary and with a desire to invite search, and not done merely to avoid resistance. It has been held in United States v. Kelih, (D. C.) 272 F. 484: "Before a court can hold that a person can waive any of his fundamental, constitutional rights, the court must be able to find that the contention of the waiver is sustained by clear, positive testimony."

See also United States v. Lydecker, (D. C.) 275 F. 976. And we think it well stated in Re Tri-State Coal & Coke Co. et al., (D. C.) 253 F. 605:

"Any acquiescence by some agent as to the seizure and detention of the books and papers was simply a choice of evils, when confronted by an officer of the United States, armed with a warrant...