State v. Ayers

88 P. 653, 49 Or. 61, 1907 Ore. LEXIS 83

• Court: Oregon Supreme Court
• Decided: February 5, 1907
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

The defendant, William M. Ayers, was accused by an information of the crime of wilfully committing an act which grossly disturbed the public peace, openly outraged public decency,' and injured the public morals, alleged to have been perpetrated in Multnomah County, August 4, 1905, and''prior thereto, by habitually selling for gain pools upon horses at an exhibition trial of their speed on a race track, particularly describing the place and the method pursued, and that he there, and on the day mentioned, sold a ticket upon a certain horse to one Victor Lindbaek, receiving therefor the sum of $20, to the common nuisance of all good citizens, and contrary to the statutes, etc. A demurrer to the information, on the ground that it did not state facts sufficient to constitute an offense against the laws of Oregon, having been overruled, a,plea of not guilty was interposed, whereupon the defendant stipulated that the facts stated in the information were true and submitted the cause to the court, without the intervention of a jury, to determine whether or not he was guilty as charged, and, having been convicted thereof, he appeals from the judgment which followed.

1. The finding of his guilt conforms to the decision rendered in the case of State v. Nease, 46 Or. 433 (80 Pac. 897), and is based on an alleged violation of the following statute, to wit:

“If any person shall wilfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this code, upon conviction thereof, shall be punished,” etc.: B. & C. Comp. § 1930.

It’ is contended by defendant's counsel that, as this section neither names any offense at common law, so that reference might be had thereto for a more specific description, nor specifies any particular act that is denounced as a crime, an error was committed in observing the rule adopted in the ease mentioned. As no common-law offenses are recognized in this state (State v. Vowels, 4 Or: 324; State v. Gaunt, 13 Or. 115: 9 Pac. 55; State v. Nease, 46 Or. 433: 80 Pac. 897), it is necessary for the legislative assembly by statute to specify crimes and to prescribe punishments therefor, in order to make their enactments enforceable. In Hackney v. State, 8 Ind. 494, decided in 1856, it was held that there were not then in Indiana any common-law offenses, the court remarking: “We cannot look to the common law for the definition of a nuisance or any other crime,” but that decision was evidently rendered after the passage of an act requiring all offenses committed in that state-to be defined by statute (Burk v. State, 27 Ind. 430), for prior thereto the rule had been that reference might be had to the ancient law to ascertain of what facts the crime of nuisance consisted: State v. Bertheol, 6 Blackf. 474 (39 Am. Dee. 442). Lord Coke, in discussing the principles of the common law and describing a species of crime cognizable thereat, says: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc., die of the wound, or hurt, etc., within a year and a day after the same”: 3 Coke’s Institutes, 47.

If our statute, embodjdng parts of Sections 1741 and 1751, Ik & C. Comp., had delineated the commission of an offense and prescribed a punishment as follows: “If any person shall purposely, and of deliberate and premeditated malice, kill another, such person, upon conviction thereof, shall be punished with death,” the elements of the common law could undoubtedly be examined to ascertain the name anciently given to the classification of such crime: State v. DeWolfe, 67 Neb. 321 (93 N. W. 746). In the case last cited, the defendant was charged with maintaining a nuisance by unlawfully exposing the citizens of a village to a contagious disease in negligently keeping an infected person in a public place. A demurrer to the information having been sustained on the ground that the Code of Nebraska particularly sets forth the conduct which constitutes a nuisance and provides- a penalty therefor, but did not include the acts complained of, the action was dismissed and the state appealed. In reversing the judgment, Mr. Chief Justice Sullivan says: “In this state all public offenses are statutory, no act is criminal unless the legislature has in express terms declared it to be so, and no person can be punished for any act or omission which is not made penal by the plain import of the written law. * * But, while there are in this state no common-law crimes, the definition of an act which is forbidden by the statute, but not defined by it, may be ascertained by reference to the common law.” See, also, Smith v. State, 12 Ohio St. 466 (80 Am. Dec. 355); Prindle v. State, 31 Tex. Cr. E. 551 (21 S. W. 360: 37 Am. St. Rep. 833). In the case at bar, the character of the act which constitutes the offense is stated in the statute, and, though the enactment does not define the crime, it specifies the facts which evidence the commission thereof.

2. It is argued, however, that the only human conduct thus denounced is such as, in the opinion of the courts, might seem “grossly” to injure the person or property of another, or “grossly” to disturb the public peace, or “openly” to outrage public decency, thereby necessitating a resort to the principles of the common law to determine whether or not any particular act comes within the prohibition, when recourse should only be had to a statute which clearly defines the behavior inveighed against.' Our statute makes it a crime for any person, being armed with a dangerous weapon, to assault another with such instrument (B. & C. Comp. § 1771), without in any manner attempting to define the weajoon. “Some weapons under particular circumstances,” says Mr. Justice Strahan in State v. Godfrey, 17 Or. 300 (20 Pac. 625: 11 Am. St. Rep. 830), “are so clearly lethal that the court may declare them to be such as a matter of law.” The rule by which the conclusion is deduced that an instrument which, when violently used, is ordinarily capable of producing death or great bodily harm, and therefore dangerous, is derived from the common law. As this principle is based on the degree of harm that is commonly incident to the impetuous use of a weapon, and can be invoked when occasion demands its exercise, a court, upon principle, ought to be equally as competent to determine what acts of a person “grossly” injure, etc., or “openly” outrage the public decency. In State v. Nease, 46 Or. 433 (80 Pac. 897), Mr. Justice Bean portrays the mischievous consequences that attend the keeping of a gaming-house for the sale of pools on horses at races, and shows the evil effect of the dealing upon the persons who visit these gambling places or witness the operations conducted thereat, and, in view of such pernicious result, we entertain no doubt that the offense which the defendant stipulated that he committed comes, as a matter of law, within the degree.of “grossly” outraging public decency and also injuring public morals.

3. The sale of pools by the defendant is alleged to have been at the course of the Multnomah Fair Association, a corporation, where, on the day named, were assembled many thousands of people to witness the racing of horses. That the offense charged was the commission of a public nuisance, affecting the general welfare, and therefore subject to the punishment imposed by Section 1930, B. & C. Comp., is, in our opinion, unquestioned, and whether or not the statute may have been intended to include private' nuisances, which were not recognized as crimes at common law, is not deemed necessary to a decision herein.

4. It is insisted by defendant’s counsel that the section under consideration does not include the keeping of houses for selling pools on horse racing, because another part of the code, adopted at the same time, prescribes a punishment for such conduct. The section mentioned was passed October 19, 1864, appears in the General Laws of Oregon, 1845-1864, and is compiled and annotated by M. P. Deady as Section 659 of Chapter 49. The next chapter of that compilation, the other part of the code referred to, embraces Sections 666 and 681, inclusive, which relate to the playing of games, etc., by gambling devices' for money, property or any representation thereof. In the brief of defendant’s counsel on this branch of the case, the following statement is found: “And there can be no doubt that pool selling, as set out in the indictment, uses a device.” A gambling device is any contrivance by the operation of which chances are determined whereby money or property is lost or won: Portis v. State, 27 Ark. 360; In re Lee Tong (D. C.), 18 Fed. 253; State v. Herryford, 19 Mo. 377. The keeping of a place for the sale of pools on horses b}r which money or property is staked on the result of a race is the maintenance of a gambling house: Swigart v. People, 50 Ill. App. 181; Edwards v. State, 76 Tenn. (8 Lea), 411.' In such case, however, the chance upon which the wager is made and the money or property placed is the competitive speed of a particular horse that has been selected as the possible winner, and not upon the manipulation of any device. The ticket which the defendant is charged with having sold was undoubtedly designed to evidence a contract, but from the manner of its use, we do not think it can be classed as a gambling device, and hence conclude that the selling of pools on horse races was not included in Chapter 50 of the compilation mentioned.

5. It is also maintained by defendant’s counsel that, if tíection 1930, B. & C. Comp., ever prohibited the selling of pools oh horse races, the statute in this respect was repealed by the adoption of the charter of the City of Portland, within the limits of which the act complained of occurred. The clauses of the action of incorporation thus relied upon are Section 72, which confers upon the council exclusive legislative power, etc., and subdivision 49 of Section 73, which authorizes the prevention and punishment of gaming and gambling houses: Sp. Laws 1903, pp. 3, 26 and 3, 33. It will be remembered that the defendant stipulated that he committed the act charged in the information as therein alleged. The following averment is contained in the written accusation, to wit:

“That the said race track is situated about two miles from the- courthouse in the said City of Portland, and is in the suburbs of the said city.”

Whether or not the race track mentioned is within the limits of the municipality is not clearly disclosed by the information, but, as counsel for the respective parties have so treated it, we shall assume the course is within the boundaries thereof. “The legislature,” says Mr. Justice Wagner, in State v. Gordon, 60 Mo. 363, “has the undoubted right, in reference to statutory misdemeanors, to say in what particular jurisdiction they shall be tried, and to make that jurisdiction exclusive of all others. When the power to hear and determine these minor offenses is given to a municipal corporation, but no words of exclusion or restriction are used, the remedies between the state and the corporation will be construed to be concurrent, but where the manifest intention is that the prosecution shall be limited exclusively to one jurisdiction, that intention must prevail.” To the same effect, see, also, 14 Am. & Eng. Enc. Law (2 ed.), 695; State v. Haines, 35 Or. 379 (58 Pac. 39: 2 Munic. Corp. Cas. 430) ; Rogers v. People, 9 Colo. 450 (32 Pac. 843: 59 Am. Rep. 146); Berry v. People, 36 Ill. 423.

The charter oí the City of Portland does not purport to confer exclusive jurisdiction to prevent gambling houses, and, as the crime of gaming was recognized at common law (4 Blackstone’s Commentaries, *171), the circuit court had jurisdiction of the case at bar, and the judgment rendered therein is affirmed. Affirmed.