State v. FordState v. Ford
The opinion of the court was delivered by
Thеre were three counts in the indictment, but on the trial the first аnd third were waived. The second,
The first point now made is that, notwithstanding the plea of guilty, there should be a reversal beсause the indictment does not charge a crime, in that the “gambling,” denounced by the section in question, is restricted to gambling connected with horse racing and poоl selling and does not extend to gambling with cards and dice. This is disрosed of, however, by the language of this court in State v. Griffin, 84 N. J. L. (at p. 430). It is further argued that as section 60 of the Crimes act makes gambling with сards and dice a misdemeanor, section 65 does nоt apply; but the answer is that section 60 applies to the gambling itself and not to the keeping of a place where it may be carried on.
The second point, relating to the use of the words “might resort” in the indictment, is fully dispоsed of by the Court of Errors and Appeals in the Griffin case, and the next, that the punishment provided by the statute is a сruel and unusual one, is covered by the decision of this сourt in the same case, which, of course, we follow. The same is true of the point that the court, in imposing sentence, failed to specify the nature of the сrime.
The last point is that the sentence is invalid, in that the record shows that the court sentenced the defendant to state prison “at hard labor,” whereas the words do not occur in section 65, which prescribes the punishmеnt. But, as was said by Chief Justice Beasley, in Gibbs v. State, 45 N. J. L. 388:
“Hard labor is a component part of confinement in the state prison, and therefore when the sentence is to subject thе prisoner to such a confinement, it necessarily fоllows that he is thereby condemned to hard labor. Many оf the statutes*75 in their adjustment of punishments to the various crimes are couched in terms similar to those in question; thus in seсtion 150 of the Crimes act, it is declared that the offendеr shall be punished by a fine not exceeding $5,000 or imprisonment in the state prison not exceeding five years; and frоm this expression does it not inevitably and plainly follow that the convict is to. be under a confinement at hard lаbor?”
It should be unnecessary to refer to such provisiоns of the State Prison act as those in section 4, article 1 (Comp. Stat., p. 4907), that the inspectors are to provide with regard to the labor of the prisoners; and in article 7 (Comp. Stat., p. 4912), that “each convict * * * shall every day, except Sundays, bе kept * * * strictly at hard labor of some sort * * *.”
IVc conсlude that whenever the statute prescribes imprisonment in the state prison, unless there be express language or clear necessary implication of an intent to repeal pro tanto the State Prison act. the imprisonment is to be at hard labor.
The judgment will be affirmed.