Fleming v. Wengler

Dec 21, 1916
Versions:190 S.W. 875
269 Mo. 366
1916 Mo. LEXIS 138
BOND, J.

I. The petitioner, who is in custody under a warrant issued by a justice of the peace upon a charge of violating section 4749 of the Revised Statutes of 1909,' sued out a habeas corpus in this court, praying' for his. discharge. - The statute under which the petitioner was arrested, so far as it need be quoted, is, to-wit:

“Or any person who becomes the custodian or depositary of any money, bet or wager or to be Ybet or wagered, upon any trial or contest of skill, speed or power of endurance of man or beast which is to be made or take place within or without this State . . . shall, on conviction, be adjudged' guilty of a .felony and shall be punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years or by imprisonment in the county jail for a term of not less than six months or more than one year, or by a fine of not less than $500, or by both such fine and imprisonment.” [Laws 1907, p. 232; now R. S. 1909, sec. 4749.]

It was stated in the affidavit for the warrant that two' persons made a bet with each other of five dollars apiece on the result of a horse race in St. Louis County, and that petitioner knowingly became custodian of the ten dollars so wagered, thereby committing a felony

*369custodian 0 Bets-II. The mere act of two persons betting privately with each other on the result of a horse race is gambling, but the offense is only a misdemeanor and not a felony. [Ullman v. St. Louis Fair Assn., 167 Mo. l. c. 283, and cases cited.]

The section under review was presented to this court in State v. Cummings, 248 Mo. 509, where it was held that the term “custodian” embraced all persons who received and held money as the stakeholder of bets laid upon the result of a horse race, ‘as the affidavit shows was done by petitioner. Unless, therefore, the act under review was illegally enacted, the petitioner must -be remanded to the custody of the officer who’ held him in charge under the process issued by the justice of the peace, although to do so presents the singular incongruity of an intention on the part of the Legislature to make the stakeholder of two bettors guilty of a felony in so doing, whereas the principals who made the bet were only guilty of a misdemeanor; for it has been distinctly held by Judge Gantt, in State v. Oldham, that when the Legislature enacted an anti-bookmaking law similar to this, it had no intention to prohibit “even betting on horse races,” but intended to prohibit the evils of pool-selling and bookmaking and the maintenance of gambling houses, with books, devices and paraphernalia to accomplish those purposes. [State v. Oldham, 200 Mo. l. c. 555, 556.] It is not for us, however, to question the wisdom of the Legislature in so doing, unless the enactment in question is prohibited either by the Constitution of the State or the Constitution of the United States. The lawmaking body is one of the three co-ordinate heads of our government and unless restricted by constitutional provisions, state or national, may enact any laws which seem good to it.

Under the authority of State v. Cummings, 248 Mo. 509, we must conclude that the Legislature in prohibiting" any one to be the stakeholder of two private bettors, intended to create a new and distinct offense punishable as stated in the concluding paragraph of the above statute.

*370Title to Statute III. It is insisted also that the act in question is violative oh the provision of the Constitution relative to its title, in that it failed to point out therein the definite subjects of legislation contained in the body kill- We are unable .to assent to that view. The title of the act in question is to-wit: “Crimes and Punishments: Book-Making and Pool-Selling. An act prohibiting book-making, pool-selling, registration of bets, or the receiving as custodian of money wagered upon contests of skill, speed' or power of endurance of man or beast, and prescribing a-penalty therefor, with an emergency clause.”

The contents of the bill are, in substance, a reenactment of the previous bill forbidding book-making and pool-selling, adopted at the general session of the Legislature with slight changes, all of which are within the general forecast afforded by the title. We, therefore, hold that it was not passed in violation of this constitutional provision.

Called Legislative Session. IY. It is insisted by the learned counsel for petitioner that the act in question is not within the purposes specified in the call made by the Governor for the re-assembling of the Legislature after the adjoummert^ ^s regular term. A careful consideration of the terms of his proclamation and the purpose had in view to suppress instantly the evil of race-track gambling without waiting until the measure passed by the -Legislature at its regular term should take effect, satisfies us that the bill passed at the called session was within the general intendment of the subject of legislation submitted by the proclamation of the Governor.

V. Neither do we think that the act in question was an attempted exercise by the Legislature of the control of interstate commerce. The only argument adduced in support of that view is that telephone communications have been held to be transactions in interstate commerce. Without passing on that point it is enough to say that the *371particular clause of the act in question presented by this application for habaes corpus does not relate in any way. to the matter of telephonic communications, but is confined solely to the question of whether or not petitioner was the custodian of a sum of money agreed by two bettors to be wagered upon a forthcoming horse race.

It results that the petitioner in this cause is remanded to the custody of the officer and the application for habeas corpus is dismissed.

All concur, except Graves, G. J-, not sitting.