Thomas v. State

My Brethren have signified approval of an opinion reversing the conviction of this appellant for keeping a gambling house, the error of which opinion seems to the writer to be clear and plain. I regret dissent, — but the vice of gambling is so ruinous and the denunciations of same so plain in all our common law and statutory utterances, and the mistake of this reversal so serious, that I am impelled to write my views at length.

In 1907 our Legislature, stirred by the murder of a great county attorney at Fort Worth while raiding a gambling house, enacted Art. 625, P. C., aimed at the evil of keeping of gambling houses, — and made same a felony. Said article stands today as when enacted. It makes a felon of him who keeps and is interested in keeping a gambling house, the offense of which this appellant was convicted.

In 1909 the Legislature enacted Arts. 647-48-49, P. C., the last named of which is the only one pertinent to this discussion, evidently without intent to change the law with reference to the felonious offense of keeping gambling houses. Nothing in Arts. 647 and 648, P. C., have reference to punishment of the person who owns or leases or is interested in the building. Art. 649 forbids any owner, agent or lessee of property in this State to permit same to be used as a place for selling pools or book-making, or assisting any person in placing any bet on horse races in this State or elsewhere. It is apparent to even a casual observer that none of the three last named articles punishes, or was intended to punish him whose offense is keeping, — or in common language, who runs a gambling house, even though the form of gambling indulged in or offered was some form of betting on horse races, — unless such keeper was also the owner, lessee, or agent of such place. Manifestly the keeper or man who runs such house is the key man in the whole guilty structure. The owner, lessee, or agent of such place might easily be hard to identify or connect with same, especially when shrewdly drawn documents relating thereto furnish smoke-screens. In any event this court can not assume that in making it a misdemeanor to bet on or to own a house where people were permitted to bet on horse races in 1909, the Legislature intended to circumscribe or lessen the scope of Art. 625, P. C., whose whole effect and purpose was directed at the keeper of any gambling house, no matter how or in what manner the gambling be done, which makes such place a gambling house. The fact that the betting at horse races, book-making, and assisting in placing bets, etc., were made misdemeanors by said Arts. 647-8-9, and that betting at football, baseball and elections, as appears in Arts. 643 and 646, P. C., are misdemeanors, argues nothing pertinent. Betting on dice, dominoes, cards, etc., were all misdemeanors when Art. 625, supra, was enacted and still are, but no one could argue that such fact in any way militated against either the purpose or power of the Legislature in making it a felony to keep a house for the purpose of being used as a place in which such misdemeanor gambling was carried on. The indictment in this case is set out in the opinion approved by the majority. Note the language:

"H. R. Thomas * * * did then and there unlawfully keep and was then and there interested in keeping a certain * * * room * * * there situated for the purpose of being used as a place to bet, wager and gamble on * * * horse races." In the opinion it is said: "The appellant's contention is that the indictment does not charge the offense contemplated under Art. 625, P. C.," and the opinion concludes with the statement that the contention must be sustained.

Unless there be some sanctity about betting on horse racing, — and there is and can be none, or unless there be something in Arts. 647-8-9, P. C., which as a later enactment, — would repeal or prevent application of Art. 625, P. C., to the acts and offense of this appellant as shown in this record, — then the indictment is good and the conviction should be upheld. No one can read Arts. 647-8-9, P. C., and find therein where the keeper of the house where the gaming is carried on, can be prosecuted therefor unless he be the owner, agent or lessee, which in ninety-nine cases out of a hundred the keeper is not. This appellant is not charged as owner, lessee, or agent of said building. If such was the charge, he might have some standing here upon which to base a claim that there was some similarity between the offense charged in Art. 649, P. C., and those denounced in Arts. 626-7, P. C., which were enacted in 1907, at the same time as Art. 625, P. C., but plainly were intended in nowise to conflict with the offense penalized by said. Art. 625, supra. In other words, while there might be some ground for claim of conflict because of like characteristics between the offenses referred to in Arts. 626-7, P. C., and Art. 649, P. C., there is not the slightest ground for holding Art. 625, P. C., repealed or superseded because of conflict with Art. 649. Nothing in Art. 649, P. C., covers the offense of which this appellant has been found guilty. He is plainly guilty of the offense denounced in Art. 625, P. C., and I cannot bring myself to believe that this court intends to construe or interpret out of existence a plain statute covering a plain violation of the law, — by any course of reasoning. It is difficult for me to understand that this court intends to say, as seems the plain import of its opinion, that if a gambling house was shown to be run for the purpose of gaming on football games, or baseball games, or elections, that the man who kept or ran such gambling house could not be prosecuted under Art. 625, simply because these were not specifically named in Art. 625, supra. The opinion states: "If the Legislature had intended to include the offense of betting on horse races, bookmaking, or pool selling in the general statute, Art. 625, supra, it could have said so." An easy reply would be that it did not name these because at that time there was no statute against betting on horse races, football games or baseball games.

Plainly the Legislature intended that the man who runs the gambling house, that is, the keeper thereof, no matter what the name or description of the gaming there carried on, should be held guilty of a felony. Said Art. 625, P. C., is copied in our original opinion, and its provisions are both comprehensive and definite. While betting on a horse race was not an offense when Art. 625 was enacted, it is completely comprehended in the language of said article; and the same is true of any room or place kept as a place where persons resort for the purpose of any kind of gambling. Note the language used: "Any place * * * shall be considered as used for gaming * * * if same is resorted to for the purpose of gaming or betting." Nor does the article say, only when the games named or described are bet upon, but says "As a place where people resort to gamble, bet or wager upon anything whatever." We are holding in the majority opinion that a man, not the owner, agent or lessee, who are the persons named in Art. 649, P. C., and the only ones, — can not be held guilty of a violation of the terms of Art. 625, P. C., notwithstanding the facts show him to be the absolute keeper of the gambling house, — the reason for our holding being that the offenses were not in existence at the time Art. 625 was enacted and were not named in said article. We are in effect holding that he can not be held guilty even after he is clearly shown not to be the owner, agent or lessee of the gambling house which he was running. He had subagents or employees who made the actual contact with the people placing the bets, and not being able to show him the owner, agent or lessee, the presumption is that he will go scot free upon reversal of this case.

I can not understand how this man would have been guilty of a felony if the gambling done in the place ran by him had been upon cards, dice or dominoes, and the prosecution had under Art. 625, supra, but now is to be held not guilty of anything because the gambling was on horse racing.

Appellant lays much stress in his brief upon the proposition that betting on horse racing is a different offense and of different kind, nature and quality from any of those named in Art. 625, P. C., and that under the rule of ejusdem generis he can not be held guilty.

Appellant insists that said article 625 having named specifically certain games and devices, the proper construction of the phrase "Or as a place where people resort to gamble, bet or wager upon anything whatever," should be held under the rule of construction known as ejusdem generis to mean only "upon any like or similar thing," in which event and under which construction appellant says he could not properly be proceeded against under said article, because a horse race is not like cards, dice or dominoes, or any of the other devices mentioned specifically in the first part of said article. The propriety of this construction is also urged in the brief in view of the fact that the articles mentioned, which relate to betting on horse races and prohibited the use of property as a place to sell pools, etc., are later statutes in point of enactment than Art. 625, supra, and all three of said last enacted articles are aimed at punishing the better at a horse race and him who aids and assists in making such bet, and him who permits his property to be used as a place for selling pools, or betting or assisting in betting on horse races, to each and all of which offenses are fixed misdemeanor penalties.

The rule of construction above referred to is sound, if properly applied, and is of ancient and respected lineage. It was born of the common law and with more or less strictness has been invoked in cases altogether too numerous to mention, much less to discuss; but after all, as is said in many cases, it is but a rule of construction invoked only when the intent of the words used in a statute, contract, document, etc., be not clear from the language, — but such rule should never be used to defeat the legislative intent if same be clearly ascertainable from the words used when taken in their ordinary meaning. State v. Grosvenor, 149 Tenn. 158, 258 S.W. 140; Phelps v. Commonwealth, 209 Ky. 318, 272 S.W. 743; State v. Western Union Tel. Co., 196 Ala. 570, 72 So. 99; Brooklyn v. Kings Co. Trust Co., 212 N.Y. St., 343; Stratford Co. v. Continental Mortg. Co., 74 Cal. App. 551, 241 P. 431; Cades v. Mosberger Lbr. Co. (Mo.), 291 S.W. 178; Dillard v. State, 104 Neb., 209, 175 N.W. 668; Children's Bootery et al. v. Sutker (Fla.), 107 So. 345, 44 A. L. R., 698; Nephi Plaster Mfg. Co. v. Juab Co., 33 Utah 114, 93 P. 53, 14 L. R. A. (N. S.), 1043. Another well established holding is that the rule referred to has no application and does not control where it appears from the language used, as a whole, that there was no intent by the use of general terms to limit their application to the kind, species, etc., set forth and enumerated in specific terms preceding such words of general application. State v. Eckhardt, 232 Mo., 49, 133 S.W. 321; Wiggins v. State, 172 Ind. 78, 87 N.E. 718; Miller v. State,121 Ind. 294; Commonwealth v. Chicago, etc. Ry. Co., 124 Ky. 497,99 S.W. 596; Williams v. Williams, 18 Tenn. 20; State v. Broderick, 7 Mo. App., 19. There is still another line of decisions applicable, especially to the matter before us, from some of which we quote. In State v. Eckhardt, 232 Mo., 49, it is said:

"The doctrine of 'ejusdem generis,' however is only a rule of construction to be applied as an aid in ascertaining the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. Nor does the doctrine apply where the specific words of a statute signify subjects greatly different from another; nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless."

Also as said in U.S. Cement Co. v. Cooper, 172 Ind. 599,88 N.E. 69:

"The rule should not be arbitrarily applied to limit the meaning of general words, nor should it be applied when the specific words embrace all objects of their class, so that general words must bear a meaning different from the specific words or be meaningless, thus violating the rule that all the words of a statute must be given effect, if possible."

Again we find in Drainage Com. v. National Contracting Co., 136 Fed., 780, 139 U.S. 628:

"The rule 'ejusdem generis' involves the idea that the particular governs the general, and is a mere auxiliary and subordinate formula, intended to assist in the application of the basic rule that the intent of the parties governs, as neither in law nor in ordinary logic can there be any inflexible rule by which parties are arbitrarily held to forego a general requirement merely because they also state a particular one."

Again in Strage v. Board of Com'rs., 173 Ind. 640, we find the following:

"The rule of ejusdem generis is not in and of itself a rule of interpretation, but an aid to interpretation when the intention is not otherwise apparent. * * * The rule of ejusdem generis does not apply when the prior or specific words exhaust the class, for there is nothing of the remaining terms to qualify, and, following the rule that all parts of a statute shall, if possible, be given effect, the general words are to be given effect, if that can be done, and that the rule shall not be invoked to restrict the operation of the act within narrower limits than the Legislature intended."

The Supreme Court of Kentucky, in Com. v. Ry. Co., 124 Ky. 497, said:

"So the restriction of general words to things ejusdem generis must not be carried to such an excess as to deprive them of all meaning. The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing which can be called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger genus. The general words are not to be rejected, and the maxim of ejusdem generis must yield to the maxim that every part of a statute should be upheld and given its appropriate effect if possible."

In order that our purpose in what we have just said and quoted may be made clear, we refer to the quoted part of Art. 625, supra: " * * * as a place to bet or wager, or to gamble with cards, dice or dominoes, or to keep or to exhibit for the purpose of gaming, any bank, table, alley, machine, wheelor device whatsoever." In this enumeration of particular things forbidden, what is left of the same kind? Cards are not like dice, and dominoes differ widely from both, and the three practically exhaust the list of gambling games which do not call for specially made tables. After enumerating the tables, banks, alleys, etc., this list concludes with its own omnium-gatherum by saying "Or device whatsoever." What like game, table or device used for gaming could any one claim is left out of this enumeration. All of like kind belonging in this class are either named or else caught up in the net of "Any device whatsoever." It is plain that when the law-makers then proceed to add to the above, — "Or as a place where people resort to gamble, bet or wager upon anything whatever," they were not intending thereby to refer to any genus or species of games or devices such as had been enumerated or included, but intended, as far as they could, to reach out and includeany kind of betting or wagering or exhibiting, in short, — to stop gambling places where people resorted to bet or wager upon anything whatever. The whole article reeks with proof of this comprehensive intention. Same goes on to say "Regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things, are licensed by law or not." Nor does the statute stop here, but further says: "Any place or device shall be considered as used for gaming or to gamble with, or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting." How completely are the words of the opinion in Com. v. Ry. Co., 124 Ky. 497, above quoted, met and applied by the words used in this statute. The enumeration of particulars therein is so exhaustive as to leave nothing which could be called ejusdem generis, and the particular words used having exhausted the genus and species, the general words following must refer us to a larger class or species. To attempt to explain the meaning of the phrase "Or as a place where people resort to gamble, bet or wager upon anything whatever," upon the theory of ejusdem generis, is not only to ignore the stronger and better rule which is written into Arts. 7 and 8 of our Penal Code, which demand that every article of this code be construed according to the plain import of the language in which it is written, and that the words of this code, unless specially defined, shall be taken and construed in the sense in which they are used in common language, taking into consideration the context and subject matter, but is also to forget and leave out the well grounded rule which is more demanding than that of ejusdem generis, — which is that every part of a statute must be upheld and its language given appropriate effect, if at all possible. As said in U.S. Cement Co. v. Cooper, 172 Ind. 599, the rule of ejusdem generis is but one of a number of rules of construction intended to aid in finding the true meaning of a statute, etc., and where, considering the act as a whole, the evil to be remedied, and public sentiment at the time of its passage, the purpose of the act clearly appears, — the rule should not be arbitrarily applied to limit the meaning of general words, nor should it be applied when the specific words used embrace all objects of their class, so that the general words must bear a meaning different from the specific words, or else be meaningless, and would be in violation of the rule that all words of a statute must be given effect if possible. This is almost the exact conclusion reached by the Supreme Court of Missouri, as appears in the quotation from State v. Eckhardt, 232 Mo., 49, supra.

Giving effect to these well settled conclusions, and also to what seems the purpose and language of Art. 625, supra, I am not able to hold that said article does not embrace the offense made by the facts in this case, but believe on the contrary that it does so embrace it, and that such was the intent of our lawmakers.

Nor do I find anything upon closest scrutiny of Arts. 647-8-9, P. C., evincing a purpose on the part of our Legislature to take out of the operation of said Art. 625, supra, — the offense of keeping and being interested in keeping a place to be used as a place to which people resort for the purpose of betting and wagering, — when the thing to be bet upon and wagered about is a horse race.

The man who permits his property to be used as a place to gamble is likely as bad as the keeper of the house, and his punishment is fixed at the same number of years in the penitentiary under our law, but the offenses are in principle and elements different.

I have read with interest the able brief of appellant and each authority cited and discussed therein, and many others. I most heartily agree with every word of the able opinion of Judge White in Murray v. State, 21 Texas Crim. App., 620. Nor do I disagree with what is said in Ex parte Roquemore,60 Tex. Crim. 282, in which this court held the game of baseball not ejusdem generis with those amusements forbidden by what we commonly call the Sunday Laws, but I have to admit my inability to make application of what is there said to what is found in the case before us.

Having carefully considered the various contentions made by appellant in this case, and not being able to agree with him, nor with the majority opinion, I respectfully record my dissent.

ON MOTION FOR REHEARING