State v. Miller

68 Conn. 373 | Conn. | 1896

Hamersley, J.

The partaking in sports or games of chance is not made an offense by § 3097 of the General Statutes, nor is it an offense by virtue of any law now in force. Formerly all games of chance were illegal; and sports or games involving a combination of skill and luck to any degree seem to have been included under the ban. In 1650 the “ game of shuffle (shovel) board ” was specially prohibited, and “ any unlawful game” was forbidden. In 1656 games “ altogether unlawful, in the very nature of them,” were defined as “cards, dice, tables, or any other game wherein that great and solemn ordinance of a Lott is expressly and directly abused and profaned; ” (1 Col. Rec. 527, 289) ; i. e., ■inasmuch as the Word of God authorized in certain cases the ascertainment of the Divine will and the settlement of controversies by the “ Lott,” the profanation of this ordinance to the purposes of frivolous' amusement is forbidden by the Word of God, and is therefore unlawful. The use of the lot for purposes of gain was also unlawful, unless the object were one approved by the General Court; as when, in 1753, permission was given to the trustees of the College of New Jersey to raise money by way of lotteiy for building “a public house for entertaining the students” (permission therefor having been repeatedly refused by the General Assembly of that Province), the General Court found the object to be “ for the encouragement of religion and learning,” and therefore lawful and not an abuse of the ordinance. 10 Col. Rec. 217. In 1750 “An Act against Gaming” (i. e., playing at games, the special prohibitions of gambling in its various forms came later) forbids dice, cards, tables, bowls, shuffle-board, billiards, coytes (quoits), lceils (kayle), loggets (loggats), “ or any other unlawful games or sport.” Acts, Ed. 1754, p. 81. Common sense, however, eventually-asserted its supremacy in such matters, and legislation has ceased to stigmatize innocent amusements as criminal, and legislative discretion is no longer invoked to define those pious uses that may be potent to extract its inherent vice from gambling.

Section 3097 does not make partaking in “sports or games of chance ” on Sunday an offense. Section 1569 retains a portion. of the early Sunday legislation, and forbids anyone to “engage in any sport or recreation on Sunday.” This early legislation was based not only on the duty of the State to protect its citizens from wanton insults to their religious faith, and observances, and in the enjoyment of. the peace and quiet to which they may be entitled on a legal holiday, but also upon the duty of the State to compel all citizens to conform to the religious tenets established by the State as binding on the conscience of all. The Sunday law was at first administered by the General Court, without special legislation, in conformity with the word of God, which was accepted as supplying, in analogy to the English common law, defects in express legislation; and the Code of 1650 only provided a special penalty for open contempt of God’s Word or the ministers thereof, and neglect to attend the public ministry of the Word; directing the civil magistrates to deal with anyone who failed to observe the peace, ordinances and rules of Christ as established by law. Special provisions from time to time were enacted. The various special provisions appear in the Revision of 1750, in “An Act for the due Observation and Keeping the Sabbath, or Lord’s Day; and for Preventing and Punishing Disorders and Prophaneness on the same.” This Act also is in part based on the duty of the State to enforce personal piety as by law established. It requires every person on that day privately “ to apply themselves to duties of religion and piety,” punishes those who, neglecting the public worship according to law, worship God by themselves in private houses; punishes whoever travels on that day or leaves his place of abode except to attend the public worship allowed by law, or does any business, labor or work of any kind; and punishes the use of “any game, sport, play or recreation.” The first break in this legislation was in 1770, when conscientious dissenters from the worship and ministry established by law, were allowed to worship by themselves without incurring the penalty for non-attendance at the State church. Since that time various changes have been made, and § 1569 contains the remnant of the original Act.

The prohibition on Sunday of any sport or recreation which interferes with the preservation of public peace and order, or the enjoyment of appropriate quiet and religious observance on that day, is clearly within the power of the legislature; if, however, the language used must be-construed as including an exercise of the power employed prior to the adoption of the Constitution, to control private action of individuals in a matter of personal conscience, serious questions would arise. But whatever may be the scope of this section, the engaging in any sport on Sunday is not an offense under § 3097. That section is directed against the proprietor of a business who receives the public as customers in the place where he carries on a business of such a nature that its open transaction on Sunday is peculiarly liable to disturb the quiet and good order to which all citizens are by law entitled on that day; and to accomplish this object it punishes the keeping open of such a place of business more severely than the mere transaction of any secular business is punished.

Section 3097, so far as the offense under discussion is concerned, provides that “ every person who . . . between the hours of twelve o’clock on Saturday night and twelve o’clock on Sunday night next following, . . . shall keep open any place ... in which any sports or games of chance are at any time carried on or allowed, shall be fined not less than fifty nor more than one hundred dollars, or be imprisoned not more than six months, or both.’’

To “ keep ” a place, as here used, means an appropriation of the place by the person in control for the conduct of his business therein. State v. Main, 31 Conn. 572, 574. This is quite evident from the language of the whole section. To “ keep open ” such a place, means providing some way of coming and going sufficient to enable any portion of the public to gather there and take part in the usual business of the place ; it does not mean opening the place solely for a proper purpose unconnected with that business. State v. Gregory, Jr., 47 Conn. 276. The business intended is described as that of carrying on or allowing any sports or games of chance. The statute does not punish keeping open any place, except one in which the business described is transacted and which is kept open on Sunday; and does not punish the subject-matter of the business there transacted, - i. e., sports and games of chance. It is apparent that the scope of the words “ sports and games of chance,” is determined and made adequately definite by the provision that the sports and games of chance specified must be such as in fact are the subject of a business consisting in supplying the requisite facilities for the use of such amusements in a place kept for the transaction of that business, to which the public or some portion thereof are invited as customers. It is a matter of common knowledge that the sport of billiards is an ordinary subject of such business, and that a place kept for the transaction of that business, if kept open on Sunday, may be peculiarly liable to interfere with the lawful restrictions for securing the quiet required on that day; and, moreover, for a long period our legislation has expressly classed “ billiards ” under “ sports,” when the word has been used in a similar connection. It is immaterial what motive induced the legislature to use this language in § 3097. “ Sport ” is a very general term, covering field sports and other means of recreation necessarily not a subject of the business described in the statute ; possibly “ games of chance ” were added to exclude any doubt as to their being covered by the more general term, or to emphasize the fact of their inclusion,— possibly because it has been an ancient legislative custom to describe amusements regulated by statute under similar circumstances, as sports or games. The language of the statute is in other respects intentionally broad, so as to provide against ingenious evasions. It is sufficient that the whole section expresses with adequate clearness the real meaning of the words used, and includes as one subject of the business specified, the sport of billiards.

The complaint in this case in charging the defendant with keeping open on Sunday a certain place known as Miller’s Pavilion, in which certain sports known as billiards were carried on and allowed, charges an offense within the statute. Whether the keeping open on Sunday of a place of business for this purpose, or some other purpose that may be covered by the broad language of the statute, is of such peculiar danger to the quiet of the day as to justify its selection for this exceptional and severe penalty, is a legislative and not a judicial question.

The Court of Common Pleas is advised to overrule the demurrer and to render appropriate final judgment.

In this opinion the other judges concurred.