In re Smith

54 Kan. 702 | Kan. | 1895

The opinion of the court was delivered by

Horton, C. J.:

The information in this case was filed under the provisions of § 368 of the crimes act, which reads as follows:

“Any person who may be found loitering around houses of ill fame, gambling houses, or places where liquors are sold or drank, without any visible means of support, or shall be the keeper or inmate of a house of ill fame or gambling house, or engaged in any unlawful calling whatever, or any able-bodied married man who shall neglect or refuse to provide for the support of his family, shall be deemed a vagrant, and,, upon conviction thereof, may.be fined in any sum not exceeding $500, or by imprisonment in the county'jail not exceeding one year.” (Geu. Stat. of 1889, ¶ 2509.)

The contention on the part of the petitioner is, that the words “ engaged in any unlawful calling whatever ” must be construed with reference to the preceding language, and, giving them such a construction, that the operating or carrying on of a lottery is not an unlawful calling; that such a calling is not within the letter or the spirit of the statute, and, therefore, that the petitioner is not guilty of violating any provision of § 368 of the crimes act. (Gen. Stat. 1889, ¶ 2509.) Adopting this rule of construction, that when there are general words following particular and specific words, the former must be confined to things of the same kind, we are of the opinion that not only is the operation or carrying on of a lottery an unlawful calling, but that it is of like kind to the keeping or carrying on of a gambling house.

Section 3 of article 15 of the constitution of the state ordains, “That lotteries and the sale of lottery tickets are forever prohibited.” The constitution, therefore, makes the operation or carrying on of a lottery an unlawful calling, notwithstanding it fails to provide any punishment for those engaged in that business. The legislature cannot charter or license the carrying on of lotteries or the sale of lottery tickets. (The State, ex rel., v. Mercantile Association, 45 Kas. 351.) Under the common law, such an occupation was unlawful. (And. Law Dict. 640; Ex parte Blanchard, 9 Nev. 101; 4 Bl. Comm. 168.) In general, the words “gaming” and “gambling,” in statutes, are similar in meaning, and either one comprehends the idea that by a bet, by chance, or by the transpiring of some event unknown until it occurs, something of value is, as the conclusion of premises, agreed to be transferred from a loser to a winner. (Bish. Stat. Cr., §858; Black, Law Diet. 530.) The word “gambling” is inclusive of hazarding as well as playing. (Bennett v. The State, 2 Yerg. 474.) A lottery is defined as “a hazard in which sums are ventured for a chance of obtaining a greater value.” Both gambling and lotteries were nuisance in the eyes of the common law. They are generally prohibited as being detrimental to the public, as promoting unlawful schemes, cheating, and other corrupt practices. The buying and selling of lottery tickets is a species of gaming, and within the inhibition of the act. In The State, ex rel., v. Mercantile Association, supra, our attention was not called to §368 of the crimes act. In referring in that case to the absence of any statute providing punishment for persons carrying on lotteries, we had in mind the failure of the legislature to impose penalties by a positive statute to carry into force and give effect to § 3 of article 15 of the constitution. The words “without any visible means of support,” do not limit or qualify, the subsequent provisions of the statute, and, therefore, they were properly omitted from the allegations of the information. The prisoner will be remanded.

All the Justiees concurring.