State v. Bryant

90 Mo. 534 | Mo. | 1886

Sherwood, J. —

The trial court, on motion of the defendant, quashed an indictment, which, omitting formal parts, is as follows :

“ That Harvey Bryant * * *■ did then and there unlawfully and wilfully bet a sum of money, to-wit: one dollar, at and upon a game ,oi chance played with and by means of a target gun and target; which said target gun and target were then and there a gambling device, adapted to the purpose of playing a game of chance for money and property, contrary to the form of the statute in suck cases made and provided, and against the peace and dignity of the state.”

This indictment is based on section 1548, Revised Statutes:

“Sec. 1548. Betting on Games. — Every person who shall bet any money or property upon any gaming table, bank or device, prohibited by the preceding section, or at or upon any other gambling device, or who shall bet upon any game played at or by means of any such gaming table, or other gambling device, or wh® shall loan or furnish any money or property to any other person to be bet as aforesaid, and the same shall be s® used, or who shall, in any manner, be interested in any such playing or betting at such device, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by a fine not exceeding twenty-five dollars nor less than ten dollars.”

The preceding section, section 1547, reads in this way:

“ Keeping a Gambling JDem'oe. — Every person wh© shall set up or keep any table or gambling device, commonly called ABC, faro bank, E O, roulette, equality, keno, or any kind of gambling table or device, adapted, devised and designed for the purpose of playing any game of chance, for money or property, and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or on the side or against the keeper thereof, shall, on conviction,. be adjudged guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars.”

I. It is very evident to my mind that the words “or other gambling device,” employed in section 1548, were only designed to apply to such gambling devices as are of a kindred nature and similar kind to those mentioned in section 1547. This view accords with that good rule of construction, which requires that, “where a particular class is spoken of, and general words follow, the class first mentioned is to.be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.” Broom’s Leg. Max. [6 Am. Ed.] s. p. 625. Thus, if in a statute, after the enumeration of classes of persons and things, there should be added “and all others,” such general words will be limited in their meaning and restricted in their operation to objects of like kind with those specified. A familiar example of this “ celebrated rule ” is found in the case of Reg. v. Whitnash, 7 B. and C. 596. Statute 29, 2 Car., chapter 7, section 1, provided “that no tradesman, artificer, workman, laborer, or other person tohatsoererf should exercise his ordinary-calling on the Lord’s day. And, thereupon, it was ruled that the words “other person” did not include a farmer, because not of like denomination with those specifically mentioned; Bayley, J., remarking that, if all persons were meant, there was no need of the specific enumeration. Bish. Stat. Crimes, sec. 245.

II. But, aside from the familiar rule already adverted to, and looking to the bare reason of the case, it cannot be possible that a “ gun and a target ” were, within the legislative contemplation, a “gambling device,” “adapted, devised and designed for the purpose of playing any game of chance, for money or property.” If a “ gun and a target ” are to 'be so regarded, a game of marbles would fall equally under the statutory ban. Indeed, under such alatitudinous construction, it is difficult to tell what sports might be interdicted, and what games punished.

III. Moreover, the statute being considered is a penal and criminal one, and, as such, is to be strictly construed. Howell v. Stewart, 54 Mo. 400; Kreitzer v. Woodson, 19 Mo. 327; Fusz v. Spaunhorst, 67 Mo. 256; United States v. Wiltberger, 5 Wheat. 76. Such statutes are to be strictly construed — that is, construed strictly in those parts which are against defendants, but liberally construed in those which are in their favor; that is for their ease or exemption. No person is to be made subject to such statutes by implication ; and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Bishop Stat. Crimes [2 Ed.J secs. 193, 194, 227.

For these reasons, the judgment is affirmed.

All concur.