DISSENTING OPINION ON MOTION FOR REHEARING. In their opinion overruling the State's motion for rehearing my Brethren seem to try to support their original conclusions deemed by me to be wholly erroneous and unwarranted, by a recital of the legislative history involving our present laws on gaming, and especially that feature of same connected with betting on horse races, book-making, etc., and they call attention to the fact that the 1905 Legislature, — two years before they passed the sweeping and comprehensive act, a part of which is Art. 625, P. C., and under which this prosecution is had, — enacted a law providing that book-making, pool-selling and betting on horse races should be forbidden and made penal only "except on the day and within the enclosure where such race is run; also that in 1907 when Art. 625 was enacted, the act containing *Page 646 same made no reference to the above mentioned act of 1905, from which fact my Brethren infer that the act of 1907 was not intended to include, or, — as here applied, — make a felon of him who kept a house for the purpose of being used as a place to bet and wager on a horse race, as is here charged.
I do not find a word in the 1905 act which protects, directly or indirectly, the man whose offense in keeping and being interested in keeping a certain house or building for the purpose of being used as a place to bet, wager and gamble on a horse race. I might observe that the 1905 law was unenforceable and obnoxious to our Constitution because the caption of the act wholly failed to set out what the purported amendments were to be. The only legal amendments to the prior act, referred to in said caption, related to horse racing and betting on same on Sunday. If any attempt was ever made to carry said 1905 act into execution, I am not aware of it, and same was expressly repealed in 1909 when the old law was substantially reenacted. I might further observe that the aim, purpose and intent of the act of 1907, as applicable here, was to penalize the keeper of a gambling house, — and this wholly without regard to whether he owned or had leased the house or premises involved. Argument would seem unnecessary to make plain that as horse racing was conducted in this State thirty years ago, at State and county fairs, etc., that the permissive language of the 1905 act as follows: "Except on the day and within the enclosure where such race is run," would clearly make impossible, or at least impracticable the keeping of such a house or premises as a place for the purpose of being used as a place to bet, wager and gamble on horse races. It might not be impossible for a house to be kept as a place to be used for such purpose when its existence and continuance was limited to one day and one enclosure, but to the writer it seems a far cry to cite this act as a reason why the Legislature in 1907, in enacting Chapter 49, Acts Regular Session, should be held to not include a house and place kept for the purpose of being used as a place to bet on horse races, when the plain, simple English words used expressly include him who keeps such house or place for the purpose of being used as a place to bet "On anything whatever."
The exact language of the caption of said act of 1907 is as follows: "Making it a felony punishable by confinement in the penitentiary for any person directly, through an agent, or as agent for another to keep any house or place to gamble with cards, dice, dominoes or upon anything whatever;" and the *Page 647 language of Art 388b (now Art. 625 P. C.) of said act makes a felon of him who keeps or is interested in keeping any building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, etc., or as a place where people resort to gamble, bet or wager upon anything whatever, * * * regardless of whether such games * * * orthings are licensed by law or not, — and any place * * * shall be considered as used for gaming * * * or for betting or wagering, if any money or anything of value is bet thereon.
My Brethren in their opinion say:
"Such was the status of the law when what are now Arts. 625, 627 and 628 were enacted in 1907. Yet, the Legislature, with knowledge that the act of 1905 expressly permitted the things mentioned and which the State now seeks to bring under present Art. 625, enacted said law without any reference to the act of 1905. It seems to follow that the Legislature had no intention at the time to include under Arts. 625, 626 and 627 the selling of pools, book-making, betting on horse races, or permitting premises to be used for such purpose."
They are in error. The 1905 Act did not expressly permit the keeping of any house or place to be kept or used anywhere for the purpose of being used as a place to bet or wager on horse races, and if the Act had been constitutional its attempted enforcement would not embrace, nor could it be construed to have reference to, such a place as was kept by this appellant as shown by this record, and the argument OFFERED IN THE OPINION, based on the 1905 Act, seems to the writer to wholly fall to the ground. There are other things contained in the opinion that seem to me to add nothing to its legal sufficience.
I make these observations in addition to those in my former dissenting opinion. I recognize that a dissenting opinion is no more than an expression of the views of its writer.
I respectfully again record my dissent.