State v. Mackin

Gill, J.

In January, 1891, defendant, as proprietor, kept a licensed billiard or pool room inEichmond, Missouri. He was indicted in the Eay county circuit court for suffering certain boys — minors under twenty-one years of age — to play pool on his tables without the permission of the fathers, masters or guardians of such minors, as prohibited by section 715, Eevised Statutes, 1889. The cause was submitted to the court on an agreed statement of facts, the substance of which was that defendant was a duly licensed keeper of a pool room, and that on January 25,1891, the minors named entered his room, and he, believing in good faith that they were of age, permitted them to play on his tables. Defendant was found guilty, and adjudged to pay a fine of $50, and thereupon appealed to this court.

The point relied upon by defendant’s counsel is thus expressed in the motion in arrest of judgment: “That the indictment upon which the defendant was tried and convicted states no cause of action against defendant; that the penalty for the offense charged in the indictment under the law could only be reached by civil proceedings, and does not belong to the catalogue of crimes or misdemeanors to be reached by indictment and prosecution on the part of the state.” In other words, it is insisted that the offense charged is not, under the law, indictable. The section of the statute which forms the basis of this prosecution reads thus: “Every licensed keeper of any table * * * who shall suffer any person under the age of twenty-one years to play on such table kept by him, without the permission of the father, master or guardian of such minor first granted, shall forfeit and pay a fine of ‡50 for every such offense, one-half of which shall be for the state, the other half for the informer, to be recovered by civil action.” Revised Statutes, 1889, see. 715.

Now the contention is that this permits only a civil action by the party offended or by the state, and that no .prosecution by indictment is allowed. But in this connection let us refer to section 3971, Revised' Statutes, 1889, under the heading of “crimes and punish- ■ ment.” That statute reads: “Whenever a fine, penalty or forfeiture is or may be inflicted by any statute of this state for any offense, the same may be recovered by indictment or information, notwithstanding another or different remedy for the recovery of the same may be specified in the law imposing the fine, penalty or forfeiture: provided, that in all cases the fine * * * shall go to the state * * * or person to whom the law imposing the same declares it shall accrue.” It is also clear that the matter charged on defendant by this, indictment constitutes an “órense” under the foregoing section. We quote from section 3976, Revised Statutes, 1889. “The terms ‘crime,’ ‘offense’ and ‘criminal offense/ when used in this or any other statute, shall be construed to mean any offense * * * f0r which any punishment by imprisonment or fine, or both, may by law be inflicted.”

Here then defendant was manifestly charged with the doing of an act punishable by a fine, and, therefore, it was an offense; and under section 3971, supra, the said fine may be recovered by indictment, even though the statute defining such offense may provide ‘for another specified remedy. State ex rel. v. Railroad, 89 Mo. 563. The case of State v. Amor, 77 Mo. 568, does not sustain defendant’s contention. When read and carefully considered in the light of the sections of the statute above quoted, the ruling there is authority for the position we here take.

The agreed statement of facts makes a clear case against the defendant. That the minors who played pool on defendant’s tables may have told the defendant that they were each twenty-one years of age, and that he may have credited their statements, and in good faith permitted them to play, is no defense in this prosecution. State v. Bruder, 35 Mo. App. 475, and cases there cited.

It results, therefore, that the judgment must be affirmed.

All concur.