dissenting. The indictment charged Everett Colbert, Negro appellant, as follows: “The Grand Jury of Ashley County, in the name and by the authority of the State of Arkansas, accuse Everett Colbert of the crime of Keeping Gambling- House committed as follows, to-wit: The said Everett Colbert in the county and State aforesaid, on the 15th day of July, A. D., 1950, did unlawfully keep, conduct and operate a gambling- house in Violation of Title 41-2001, Ark. Stats. (1947), and against the peace and dignity of the State of Arkansas.”
Material facts appear not in dispute.
Appellants and a number of other Negroes gathered in a stretch of woods located on the west boundary of the right of way of the log railroad running north and south from the timber holdings of the Crossett Lumber Company. This stretch of woods constituted the “gambling-house,” approximately one mile from human habitation and inaccessible by automobile. There were several tables or benches, consisting of two planks nailed between posts or trees at this particular site, and had been for a number of years. These tables were utilized f or “ crap shooting, ’ ’ or playing dice, for money and one of these tables appears to have been set up and operated by appellant.
On these facts appellant was convicted of a felony under § 41-2001, Ark. Stats. (1947), which provides: “§ 41-2001. Keeping gambling- house — Penalty.—Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing-money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one (1) year nor more than three (3) years. (Acts 1913, No. 152, § 1, p. 613; C. & M. Dig., § 2632; Pope’s Dig., § 3322.)”
Another section of the statute, 41-2003, provides: “§ 41-2003. Keeping gaming device — Penalty.—Every person, who shall set up, keep, or exhibit any gaming-table, or gambling device, commonly called A. B. C., E. 0., roulette, rouge et noir, or any faro bank or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing-any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum, not less than one hundred dollars ($100.00), and may be imprisoned any length of time, not less than thirty (30) days nor more than one (1) year. (Rev. Stat., ch. 44, div. 6, art. 3, § 1; C. & M. Dig., § 2630; Pope’s Dig., % 3320.)”
Appellant earnestly insists that on the record here he was not guilty of a felony and was prosecuted under the wrong section. I think appellant is correct in his contention. As I view it, he was guilty of a misdemeanor under § 4172003.
We must bear in mind that appellant was charged with the crime of “keeping a gambling house” which is a felony under § 41-2001.
Just what did the Legislature have in mind by this statute? What specific phase was it intended to cover? This court has given, I think, a rather clear answer to these questions in Turner v. State, 153 Ark. 40, 239 S. W. 373, where it said: “This statute is leveled at the specific offense of ‘keeping, conducting or operating a house or place’ for the purpose of allowing gambling to be carried on therein, or any gambling device or devices to be set up and exhibited therein. The gravamen of the offense is the maintaining of a house or place where those who desire to engage in gambling or to exhibit any gambling device, or devices, may. resort and find shelter, so to speak, while indulging in their gambling practices. The gist of the offense is the keeping of the house or place for the purposes named therein.”
It seems obvious to me that our lawmakers never intended that a few crude planks set up out in the open woods upon which dice games are played should come within the purview or meaning of a gambling house as this court has pointed out in the Turner case, above. If the term “gambling house” as used in § 11-2001, be construed to include every place where gambling is carried on, then why did it not omit “gambling house” and use “the place where gambling is carried on” only. Section 11-2001 (Act 152, § 1, p. 613 of 1913) did not repeal the misdemeanor statute above (11-2003).
In Johnson v. State, 101 Ark. 159, 141 S. W. 493, a Negro dice game in the woods was held to be a violation of the misdemeanor statute above setting up a gambling device.
It is “a settled rule of statutory construction that statutes relating to a subject must be considered as a whole and to get at the meaning of any part thereof we must read it in the light of other provisions relating to the same subject,” Wolf & Bailey v. Phillips, 107 Ark. 374, 155 S. W. 924.
“The legislative intent is to be derived from a fair and reasonable construction of the act, having in mind the thing desired to be accomplished or the evil to be remedied, * * *.” State v. Handlin, 100 Ark. 175, 139 S. W. 1112.
“All laws are to be given sensible construction, and literal application of statute which would lead to absurd consequences should be avoided whenever reasonable application can be given consistent with legislative purposes.” Merritt v. No Fence District No. 2, Jefferson County, 205 Ark. 1129, 172 S. W. 2d 684.
I am firmly of the conviction that our Legislature never intended that any man, white or black, should be branded as a felon and confined in the State Penitentiary on a state of facts which this record presents.
I am unable to join the majority in solemnly declaring that our lawmakers intended that a few planks set up under the trees, and on which the game of “shooting-dice” is played, should constitute a gambling house within the common sense meaning of that term as used in § 41-2001. Appellant was guilty here of a misdemeanor and nothing more, and the judgment should be reversed.
Robinson, J., joins in this dissent.