In re Burgess , 12 Idaho 143 ( 1906 )

AILSHIE, J.

The contention is made by the petitioners that under section 1 of the anti-gambling act (Sess. Laws 1899, p. 389), the court was without jurisdiction and authority to impose a sentence of both fine and imprisonment. Section 1 of the law in question, after enumerating the acts prohibited, declares that anyone who commits any of the forbidden acts “is guilty of a misdemeanor and is punishable by fine not less than two hundred dollars or imprisonment in the county jail not less than four months.”

In State v. Mulkey, 6 Idaho, 617, 59 Pac. 17, the contention was made that the anti-gambling law was unconstitutional and void, for the reason that it only fixed the minimum penalty to be imposed for its violation and established no maximum penalty whatever. This court answered that contention in the following manner: “The act in question fixes the minimum punishment, but does not fix the maximum. Section 1 of said act makes the offense a misdemeanor. Section 6313 of the Revised Statutes is as follows: ‘Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding three hundred dollars, or by both.’ Reading, the act in question with said section 6313 of the Revised Statutes, both the maximum and minimum punishment are provided.” The validity of this law again came under consideration in Re Rowland, 8 Idaho, 595, 70 Pac. 610, and the court said: “The object of the statute is to prevent gambling. Under its terms, one who plays for money in a game of poker is guilty of a misdemeanor, and subject to punishment under the statute. The statute fixes the minimum punishment at a fine ot not less than two hundred dollars or punishment of not less than four months in the county jail. It is true that the statute does not fix the maximum punishment, but, as this court held in State v. Mulkey, 6 Idaho, 617, 59 Pac. 17, the maximum punishment is prescribed in section 6313 of the Revised Statutes.”

The foregoing cases from this court are decisive of the point raised by petitioners. Section 1 of the act only attempts to fix the lightest penalty that the court may in any case impose, viz.: A fine of not less than $200 or imprisonment of not less than four months. The court may let the prisoner off with either of the foregoing penalties, but nothing short of one of them will satisfy the statute. This statute, it will be observed, does not undertake to prohibit a heavier penalty than therein specified; its purpose is to prohibit a lighter penalty. For the maximum penalty this court has said we should look to section 6313 of the Revised Statutes. That is a general statute fixing the maximum penalty in misdemeanor cases where a maximum is not fixed by the act defining the offense, and under that statute the punishment may be “imprisonment in a county jail not exceeding six months, or by a fine not exceeding three hundred dollars, or by both. ’ ’ We are forced to the conclusion that under the statute as it hás been interpreted by this court in two unanimous decisions, the maximum punishment which may be imposed on one convicted of gambling would be a fine of $300 and imprisonment for six months. The sentence in this case was clearly within the limit, and within the jurisdiction of the court. The writ is dismissed and the prisoners are hereby remanded to the custody of the sheriff of Washington county.

Stockslager, C. J., and Sullivan, J., concur.