State v. Nease

Mr. Justice Bean

delivered the opinion of the court.

The defendant was indicted for willfully committing an act which grossly disturbs the public peace, openly outrages the public decency, and is injurious to the public morals, in that he, viz:

“On the 20th day of October, a. d. 1904, and thence continuously until the 1st day of November, 1904, * * did then and there, for gain, habitually sell pools upon horse races, and habitually procure idle and evil-disposed persons to come to his house to buy pools and to bet upon horse races, to the common nuisance and annoyance of all good citizens,” etc.

He had previously obtained from the City of Portland a license to conduct a pool room. The trial court held that the license was no protection, and refused to direct an acquittal of the defendant. He was consequently convicted and appeals.

1. The evidence shows that he was the keeper and proprietor of what is called a “turf exchange,” or pool room, on one of the principal thoroughfares in the city, at which persons daily congregated for the purpose of betting upon horse races run in other states, and reported to him by telegraph. The odds on every horse in any race of importance about to be run, as made at the race course, were reported to the defendant before the race, and posted for the information of the public on a blackboard in the room used by him. A person desiring to bet would select a horse, pay the amount of his bet according to the odds appearing on the blackboard, and receive from the defendant a ticket showing the sum to which he would be entitled in case the horse selected by him won. As soon as the race was run the result would be immediately telegraphed to the defendant, and he would pay the amount coming to the holders of tickets on the winning horse, less a certain per cent as commission. That such a house is a gaming or gambling house, and punishable as a nuisanee at common law, whether betting on a horse *439 race is a crime or not, has so often and uniformly been held by the courts that it is no longer open to discussion. There is no dissent in the adjudged cases, and it is unnecessary to do more than cite the authorities: McBride v. State, 39 Fla. 442 (22 South. 711); Thrower v. State, 117 Ga. 753 (45 S. E. 126). Swigart v. People, 154 Ill. 284 (40 N. E. 432); Swigart v. People, 50 Ill. App. 181; Cheek v. Commonwealth, 79 Ky. 359; People v. Weithoff, 51 Mich. 203 (16 N. W. 442, 47 Am. Rep. 557); People v. Weithoff, 93 Mich. 631 (53 N W. 784, 32 Am. St. Rep. 532); McClean v. State, 49 N. J. Law, 471 (9 Atl. 681); Miller v. United States, 6 App. D. C. 6.

2. By its charter the City of Portland is authorized to “prevent and suppress gaming and gambling houses,” but not to make such places lawful by licensing them: Schuster v. State, 48 Ala. 199.

3. Nor, as we understand it, are these positions seriously controverted by the defendant, but his contention is that there is no law in this State for the punishment of the keeper of a common gaming house; that, although the statute makes certain kinds of gambling a crime, and punishable as such (B. & C. Comp. § 1944), and provides for the punishment of the owner of a building who suffers or permits gambling to be carried on therein (B. & C. Comp. § 1949), it does not make the keeping of a gambling house unlawful, or provide for the punishment of a keeper or proprietor thereof. Now, there is no statute providing specifically for such an offense, nor have we any common law offenses, as such: State v. Vowels, 4 Or. 324; State v. Gaunt, 13 Or. 115 (9 Pac. 55). But Section 1930 provides “If any person shall willfully 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 the public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than fifty nor more than two hundred dollars.” This section is a part of the original Criminal Code reported to and adopted by the legislature in October, *440 1864, and was probably taken bodily from the draft of a Penal Code for the State of New York prepared by David Dudley Field and his associates in-April of that year: Proposed Penal Code, § 736. It has been generally known as the “Nuisance Statute,” and prosecutions and convictions for maintaining public nuisances have been had thereunder: State v. Bergman, 6 Or 341. It was evidently intended to cover such offenses against the public peace, the public health, common decency and the public morals, and such as grossly injure the' person or property of another, which are not otherwise made punishable, by the Code. This is indicated quite clearly by the marginal index or syllabus accompanying the Code, as reported to the legislature and adopted by it. The section is there described as covering “acts contrary to good morals and common decency.” This syllabus became a part of the law, and furnishes, as said by Mr. Justice McArti-iub, “the highest source from which to draw information as to the nomenclature of the said Code”: State v. Vowels, 4 Or. 324. It is true, the offenses referred to were technically denominated “nuisances” at common law, and that term does not occur in the statute; but the language used is essentially descriptive of the general character of such offenses, and quite equivalent thereto. Certain acts were punishable as nuisances at common law because they outraged public decency and were against good morals, such as habitual, open and notorious lewdness, roaming the streets naked (Wharton, Crim. Law, § 1432), the indecent exposure of the person on a highway or in a public place (State v. Rose; 32 Mo. 560; Gilmore v. State, 118 Ga. 299, 45 S. E. 226), the exhibition of an unseemly or obscene sign or picture (Knowles v. State, 3 Day, 103; Commonwealth v. Sharpless, 2 Serg. & R. 91, 7 Am. Dec. 632), and other similar matters. Other acts were likewise, punishable because they injuriously affected the public health, such as maintaining slaughterhouses in a populous neighborhood, or the exposing for sale for human food of putrid or infected articles which were injurious to the health, and,the like: Wharton, Crim. Law, '§ 1433, et seq.

Still other acts were punishable because they disturbed or injured the public peace or morals, by congregating large mum- *441 hers of idle and. dissolute persons in one place for vicious purposes, and of sucli were common gaming houses. The keeping of such a house was a separate and well-defined offense at common law, entirely independent of the criminality of the business conducted therein. It was punishable as a nuisance before any sort of gambling was prohibited or even considered to be against public policy, because it tended to draw together disorderly persons, and to encourage vice, idleness, and breaches of the peace: 4 Cyc. 485; 7 Bacon, Abridg. 223; 3 Arehbold, Grim. Pl. 609; United Slates v. Dixon, 4 Cranch, C. C. 107 (Fed. Cas. No. 14970); King v. Dixon, 10 Mod. *336; King v. Medlor, 2 Showers, *36; Jenks v. Turpin, 13 L. R. Q. B. D. 505; State v. Layman, 5 Har. (Mich.), 510. In Hawkins’ Pleas of the Crown (book 1, c. 32, § 6), it is said: “All common gaming houses are nuisances, in the eve of the law, * * not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighborhood.” In 1 Russell on Crimes, p. 741, the principle upon which common gaming houses are punishable as nuisances is said to be that they are “detrimental to the public, as they promote cheating and other corrupt practices, and incite to idleness and avaricious ways of gaining property great numbers, whose time might otherwise be employed for the good of the community.” Mr. Chief Justice Bronson says: “I have no doubt that the keeping of a common gaming house is indictable at the common law: The King v. Rogier, 1 B. & C. 272; People v. Sergeant, 8 Cow. 139. It is illegal, because it draws together evil-disposed persons, encourages excessive, gaming, idleness, cheating, and other corrupt practices, and tends to public disorder. Nothing is more likely to happen at such places than breaches of the public peace”: People v. Jackson, 3 Denio, 101 (45 Am. Dec. 449). And in Vanderworker v. State, 13 Ark. 700, Mr. Chief Justice Scott says: “Independent of any statute, the keeping of a common gaming house is indictable at common law, on account of its tendency to bring together disorderly persons, promote immorality, and lead to breaches of the peace.. Such an establishment is thus a common nuisance.” *442 The keeping of a gaming house was therefore an offense at common law, because, among other things, it disturbed the public peace and tranquillity, by encouraging idleness, riot, thriftlessness, breaches of the peace, disorderly conduct, and the like.

By Section 1930, the willful and unlawful commission of an act which grossly disturbs the public peace or outrages the public decency and is injurious to public morals, if no punishment is provided by the Code, is made an offense and punished in a certain manner. “Willfully” means a purpose or willingness to commit the act referred to (B. & C. Comp. § 2176), and is equivalent to “knowingly” (Wong v. Asioria, 13 Or. 538, 11 Pac. 295); “wrongfully,” that the act was done in violation of right or without authority of law: B. & C. Comp, §2180. “Grossly” is defined by Webster to mean greatly, coarsely, shamefully, disgracefully; and “disturb,”-to throw into disorder or confusion, to interrupt the settled state of, to excite from a state' of rest, to render uneasy. The statute therefore simply means that one who knowingly and without authority of law commits an illegal act which greatly or shamefully annoys or scandalizes the community, and agitates and disturbs the quiet and tranquillity of the public, or outrages public decency and is injurious to the public morals, is guilty of an offense, and punishable in a certain manner, if no other punishment is expressly provided therefor, and this is substantially the definition of a nuisance, at common law: 21 Am. & Eng. Enc. Law (2ed.)., 683. It is not necessary, as counsel for defendant contend, that there should be an actual breach or disturbance of the peace, to come within the statute. Overt acts constituting breaches of the. peace are distinct offenses, both by statute and at common law, and actual or threatened violence is an element thereof: Ware v. Branch, 75 Mich. 488 (42 N. W. 997). Violence, either actual or threatened, is not a necessary element to constitute, the offense under the statute. It is sufficient that the public peace be grossly disturbed, and, as Mr. Bishop says, “the community is disturbed whenever it is alarmed”: Bishop, Crim. Law (7 ed.), 541.

*443 An immoral or criminal act, which, while not amounting to a breach of the peace, disturbs the quiet and tranquillity of society to the injury of public order and decorum, or disturbs or threatens the public peace, comes within the statute; and, as we have seen, it has been held by the courts from time immemorial that a common gaming house is of such a character. If the statute had declared the acts prohibited to be nuisances, it would have been no more certain than it now is. It would still have been necessary to resort to the common law to ascertain its meaning. In place of providing, as has been done in many states, for the punishment of nuisances, leaving it to be determined from the common law what specific offenses come within that term, the legislature thought it wiser to adopt the other course, and embody in the statute, as a description of the offenses prohibited, the essential ingredients of a common-law nuisance. There can be no substantial difference, however, between the two methods. One uses the technical name, leaving the essentia] elements of the offense to be determined from the common law, while the other sets forth the ingredients of the offense, leaving its technical name to be so ascertained. The result is the same.

4. It was said in argument that this section had been on the statute books for more than forty years, and that up to this time there has been no attempt to apply its provisions to common gaming houses, and it is urged that such fact is entitled to conclusive weight as to the practical construction of the meaning and operation of the statute. If the facts assumed in the argument are true — a matter concerning which we have no definite knowledge — it simply shows that the statute has been forgotten of disregarded, and affords no reason why the court should now refuse to administer the law as it is written. Affirmed.