Engle v. Scott , 57 Ariz. 383 ( 1941 )

As a citizen of Arizona, my sympathies are with the portion of our population that is striving to rid the community of the professional gamblers and places where gambling is conducted, but in my capacity as a judge, if I would aid in their extirpation, I must do it in accordance with the laws as passed by the Legislature of the state. That department has plenary power over gambling in all of its phases. It can abolish or prohibit gambling houses or it can regulate such places. It has not said that a place such as described in the complaint is unlawful. It has prohibited certain kinds of gambling and gambling houses, sections 43-2701 to 43-2715, Arizona Code, 1939, but in Engle v. State, 53 Ariz. 458, 90 P.2d 988, 991, it was decided by this court that such prohibition does not include an establishment such as the one this defendant is charged with keeping. In that case it was held that Engle's establishment, as described in the information and as shown by the stipulation of the facts, constituted a public nuisance as defined by section 4693, Revised Code of 1928. This section was construed therein to mean:

"A public nuisance is defined by the section as being anything which is injurious to health, or indecent or offensive to the senses so as to interfere with the comfortable enjoyment of life or property by any considerable number of persons. . . ."

The present complaint does not allege the elements of a public nuisance as described in section 4693 or as stated by this court. In other words, it fails to allege either in such language or equivalent language that Engle's establishment "is injurious to health, or indecent or offensive to the senses so as to interfere with the comfortable enjoyment of life or property by any considerable number of persons." It merely recites that defendant's establishment is a place where bets and wagers are made on horse races run in other states, under the pari-mutuel system of betting; that persons congregate there to bet and to be paid their winnings, if any, and that such establishment is "a public nuisance per se, to-wit: a gaming house or a gaming place." Clearly, such a place does not fall within the terms of the statute defining a public nuisance, nor within the definition of a public nuisance as heretofore given by this court.

It is not enough that the facts alleged and admitted constitute a public nuisance at common law. We have no common-law offenses and, since our Legislature has defined what a public nuisance is, common-law definitions may not be substituted. Section 43-101, Arizona Code 1939, which has been the law of this jurisdiction for many years, reads:

". . . No act or omission commenced after twelve o'clock, noon, of the day on which this Code takes effect, is criminal or punishable, except as prescribed or authorized by this Code, or by some other law of this state, or by some ordinance, municipal, county or township regulation, passed or adopted under authority of law."

I think this court went the limit in Engle v. State, supra, to assist in the suppression of gambling and should hesitate long before supplying for the exigencies of this case what the Legislature has omitted to supply.

However, if defendant's establishment is a public nuisance as defined by the statute, then his act constitutes a misdemeanor and he should be tried therefor like all other persons who commit crimes. The rule in this and all other jurisdictions is that injunction will not lie to prevent a person from committing a crime unless it be shown in the petition for the writ that it is necessary that the party be enjoined to prevent some property or property right from being injured or destroyed or to protect the public health. State v.Smith, 43 Ariz. 131, 29 P.2d 718, 92 A.L.R. 168, modified43 Ariz. 343, 31 P.2d 102, 92 A.L.R. 173; Takiguchi v.State, 47 Ariz. 302, 55 P.2d 802.

It is fundamental that injunction will not issue if the party has a plain, speedy and adequate remedy at law. The remedy here is a criminal prosecution. If jurors fail to convict, even though the evidence should be clear as to defendant's guilt, it is not the fault of the law but of those who administer it. That, however, should not prevent its taking the regular course.