35 Mo. App. 541 | Mo. Ct. App. | 1889
The defendant was indicted, tried and convicted for playing the game of base-ball on Sunday. He appeals to this court on the ground, as alleged by him, that “playing at a game of base-ball on'Sunday is not forbidden by the laws of this state.”
The testimony on the part of the state was, in substance, as follows:
“ The defendant was, during the year 1888, a member of the Moberly Base-Ball Club ; that on a certain Sunday in July, 1888, the club played a game of baseball at their grounds, just outside of the corporate limits of the said city of Moberly, and that the defendant was present and participated in the game ; that there were also present as spectators several hundred people.”
The section of the statute under which the indictment was found, is as follows: “Sec. 1580. Every person who shall be convicted of horse-racing, cock fighting, or playing at cards or games of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.”
The objection urged is that the game of base-ball is not included in the general words, “ or games of any kind,” under the familiar -rule of construction, which, as stated by Bishop, is, “ That where particular words of a statute are followed by general, — as if, after the
But the object of this rule must not be overlooked ; its object is, not to defeat, but to ascertain, and carry out, the legislative intent. Where, therefore, the application of the rule would be in the face of the evident meaning of the legislature, it will not be applied. Bish. Stat. Crimes, sec. 246 ; Woodsworth v. The State, 26 Ohio St. 196. So, where the expression in a statute is special or particular, but the reason is general, the expression should be deemed general. 1 Kent, 462. “ In construing statutes, penal as well as others, an interpretation must never be adopted that will defeat its own purpose, if it will admit of any other reasonable construction.” 9 Wheat. 381.
In Shropshire v. Glasscock, 4 Mo. 536, the question was whether a forfeit bond given to secure the running of a horse-race was within the terms of the gaming statute, which read, that all notes or bonds for the payment of money “ won by gaming, or playing at cards, dice, or any game or games, shall be void and of no effect.” And the rule of construction here contended for was urged in that case ; but the court held, that the fact that the legislature intended to use general words, sufficient to embrace all modes of gaming, was made evident by the use of the words “ or any other game or games,” after the words “or playingat cards or dice,” thereby intending again to prohibit all fashions and modes of gaming. This case has been approved in Boynton v. Corle, 4 Mo. 599; Eubanks v. The State, 5 Mo. 450; Hayden v. Little, 35 Mo. 418.
By way of illustration only, we note the following decisions on the statutes quoted. In Woodsworth v. The State, supra, the statute is: “ That if any person shall abuse any judge or justice of the peace; resist or abuse any sheriff, constable or other officer, in the execution
In the State v. Williams, 2 Strob. ( South Car.) 474, the words of the statute are : “If any person shall take from any field, not belonging to such person, any cotton, corn, rice, or other grain,” etc., and a conviction for stealing a half bushel of peas was upheld.
In State v. Holman, 3 McCord ( South Car.) 306, the defendant was convicted of “packing and pouring” an “undue quantity of water” into a bale of cotton, under a statute reciting that whoever shall be convicted “ of knowingly and wilfully packing or putting into any bag, bale or bales of cotton any stone, wood, trash cotton, cotton seed, or any matter or thing whatsoever.” The court in that case adopted the language of the supreme court of the United States in the case of United States v. Fisher, 2 Cranch, 335, 390, that where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed.
In Commonwealth v. Percavil, 4 Leigh. (Virginia ) the defendant was held for killing hogs of another, under a statute reading, that any person who shall “ cut down any tree growing on the land of another, or destroy or injure any such tree, or any building, fence or other improvement,” etc., or who shall “take and carry away, or destroy or injure, any tree already cut, or any other timber, or property real or personal.”
In keeping with these cases the supreme court of Alabama in Foster v. Blount, 18 Ala. 687, has said that the rule here discussed, and which was invoked in each of the cases above cited, is a rule of construction to ascertain the intention of the legislature and when that is clear, the courts are bound by it. “ If we were to restrict the meaning of genera] words, when the framers of the law, by the use of them, intended to embrace other
Now the statute under consideration in this case, was evidently intended to prevent a desecration of the Sabbath, by restraining the doing of those things which are offensive to a Christian community, by being done on that day. The day upon which the act is done was in the view of the lawmaker, for otherwise, if it was the act only, the law would have prevented horse-racing, card-playing “or games of any kind,” on any day, Sunday or secular. The statute was not aiming to prevent the doing of things immoral per se, or the tendency of which is immoral, as the inhibition is not against gambling or betting on the games, but merely against doing the act on that day, though it be not immoral or tending to immorality. The object of the law-makers being thus apparent, and the language used to cover that object, so apt, would it not be inexcusable technical refinement for the courts to say that the general words, “or games of any kind,” did not include the game of base-ball 1 That game is said to have become national and it is well known that in some sections of the country and of this state, it attracts vast crowds of people, rival-ling in numbers those which assembled in the amphitheatres of Rome or gathered to witness the Olympian games of Greece. It is going further than we feel at liberty to venture, to say that the legislature did not intend to include such a game, in the terms of the statute under consideration.
The rule', which we have quoted, means that the general words of the statute will be confined to things ejusdem generis, that is of the same kind as those the special words have enumerated. The general words are generally these, “ or any other,” etc. This rule, aa we have stated, is a rule of construction. It is not
If it had used the former words, it might with more reason, be said to have meant any other game of like kind with those specified, and might have been so read. But with the words it has used, such interpretation would require us to read it, “or games of any kind of like kind ; ” a mode of expression in itself contradictory and which could scarcely have 'been meant by the law-makers.
Again, we find ourselves in the dilemma the court was in the case in 4* Mo. supra. The contention there was that, the words, “other game or games,” were only intended to embrace games of like kind with cards and dice ; and that games of the turf were not intended to be embraced by the act. The court in that case said: “We are not satisfied that this construction of the act is correct. What game would be of such like kind as to correspond with this construction, we cannot exactly undertake to say. All those games which require a shelter, a house, a deep cellar or dark place, to be successfully performed, are alike, or are of like kind in the place, but in many the principles of the games may be essentially different from each other.”
So we are at a loss to know what other games would be of like kind with cards, which are mentioned in this statute, for it must be borne in mind, that the gambling element is not made an ingredient of the game.
My own opinion is, that while horse-racing and cock-fighting may be classed generally, as games, in the sense that they are amusements, diversions or sports ; yet they are not such games as are commonly understood may be “ played at,” and in this sense they were
I know the usual argument is here introduced, of innocent and harmless games; but none of them, disassociated from the idea of gambling, which, as we have seen, is not here made an ingredient of the offense, are any more harmless per se, than playing at cards, and the same argument can be directed at cards, which are specially named by the law, as to others not named. The argument is additionally blunted by the consideration, that no game can be more quietly or secretly played than cards.
The distinguished counsel for defendant has cited us to the cases of State v. Bryant, 90 Mo. 535; City of St. Louis v. Laughlin, 49 Mo. 559; City of St. Joseph v. Porter, 29 Mo. App. 605; Knox City v. Thompson, 19 Mo. App. 523; and we have not overlooked them in the consideration which we have given this case. Those cases were correctly decided. They were cases in which the rule of construction referred to was an aid whereby the intention of the legislature might b.e ascertained, but we do not think them applicable to this statute, the object, intention and peculiarity of which, we have endeavored to point out.
The defendant was properly convicted by the trial court,
the judgment will be affirmed.
