Commonwealth v. Ayers

17 Pa. Super. 352 | Pa. Super. Ct. | 1901

Opinion by

W. D. Porter, J.,

The defendant was, in a summary 'proceeding before a justice of the peace, convicted of a violation of the Act of April 3, 1872, P. L. 751, entitled, “ An act to prohibit the use of billiard tables, bowling-alleys, dice or card tables, in the township of Wyalusing, in the county of Bradford.” The 1st section of' the act provides : “ That from and after the passage of this act it shall not be lawful to keep for use'as such any billiard table or tables, bowling-alleys, dice or card table or tables or any other device by which men and boys are allured to vice and idleness, in the township of Wyalusing, in the county of Bradford.” The 2d section imposes a penalty and confers jurisdiction of the offense upon justices of the peace. The title of the act gives notice of an express prohibition of the use of billiard tables, and notice of such prohibition is a sufficient warning of the penalty imposed for the violation: Commonwealth v. Sellers, 130 Pa. 32. It is not necessary to discuss the power of the legislature to prohibit all use of billiard tables, in private families as well as public resorts, for in this respect the provisions of the act are not as broad as the title. The playing of billiards is not forbidden. The keeping for use, which is made unlawful, is to be understood in the sense in which that term is applied in designating a business or occupation, as we speak of keeping a grocery store or a tavern. The act forbidden is' the keeping of billiard tables for the use of the public for hire, and the purpose of the enactment is by its terms clearly indicated to be the suppression of pursuits, “by which men and boys are allured to vice and idleness.” That clause of the 1st section of the act which attempted an extension of the prohibition to devices other than billiard tables, bowling-alleys, dice or card tables, went beyond the limits of the title and to that extent the act is invalid, but as to the devices specifically enumerated in the title, the legislation does not offend against the constitutional requirement.

The information upon which the proceeding before the justice of the peace was founded ought to have set forth every material element of the offense, and facts necessary to establish the jurisdiction of the justice. The offense was substantially charged in the language of the statute and the time and place of its commission were given, and to that extent the information was sufficient. The jurisdiction of the justice was not made apparent in the complaint, but the whole record is to be taken together and the jurisdiction of the justice is clearly established: Johnston v. Commonwealth, 22 Pa. 102. The borough of Wyalusing was, subsequently to the legislation in question, carved out of the township of the same name but it remained subject to the provisions of this local statute which was the law of the whole territory embraced by the township: Clifford v. Belsterling, 2 S. & R. 108; Lackawanna County v. Stevens, 105 Pa. 465.

It is not necessary to notice in detail the twenty assignments of error in this appeal. The findings of the justice are not sufficient to support any judgment. It is essential that the record of a summary conviction shall contain a finding that an act has been done by the defendant which falls within an unlawful class. The legislation. with which we are now dealing did not prescribe a form of conviction for the violation of its provisions; and the judgment of the magistrate must stand upon the facts as found by him, and is not to be sustained or .overthrown because of the evidence which has been sent up with the record but is no part of it: (Commonwealth v. Gipner, 118 Pa. 379) ; the only finding of facts shown by this record is, “ Now after hearing their proofs and allegations, defendant Benjamin Ayers, is convicted of keeping a billiard or pool table for the use of the public, and fined $20.00 and costs.” The keeping of a billiard table for use by the public, is not generally a penal offense in the commonwealth of Pennsylvania or the county of Bradford. It was not a penal offense throughout the entire territory over which this magistrate had jurisdiction. The cases in which such act is a penal offense are exceptional, and to sustain the imposition of a penalty the record, must show a finding that the act was committed in a place in which it was forbidden by law: Commonwealth v. Nesbit, 34 Pa. 398. The magistrate having failed to find that the act of the defendant was done within that small district affected by this legislation his judgment cannot be sustained. The finding of the magistrate is further defective for the reason that the device which the defendant is found to have kept is stated to have been “ a billiard or pool table.” Here is an alternative finding upon a question of fact. Wliethe u a pool table is a billiard table cannot be a question of law. If they are different devices, then the keeping of a pool table is not forbidden by this legislation. If they are the same thing, then there was no reason for placing the finding in the alternative. We cannot say as matter of law that all pool tables are alike, nor can we say that some pool tables are in fact billiard tables while, others may not be. There seems to have been a controversy among the witnesses produced before the magistráte upon this very question. It was the duty of the magistrate to definitely make up his mind what kind of’ a table this was, and find the facts upon the existence of which his power to sentence the defendant was dependent.

The judgment is reversed.