Tobin v. State, 1357

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: ILSLEY, District Judge.
• Citation: 255 P. 788,36 Wyo. 368
• Decision Date: 03 May 1927
• Docket Number: 1357
• Parties: TOBIN v. STATE [*]

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

[36 Wyo. 372] 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:

[36 Wyo. 373] "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...