[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 474 The petitioner was arrested upon a complaint which it is claimed alleges a violation of section 337a of the Penal Code. He contends that it does not charge any public offense whatever, and upon that contention he has sued out a writ of habeas corpus. It is admitted that no crime is charged against him, unless it be under the aforesaid section.
The charge in substance is that, without consideration, gain, hire, or reward, at some place in San Francisco not described, he became the custodian and depositary of ten dollars in money, then and there bet and wagered by two other persons with each other, upon the result of a horse race then about to take place.
Although comprising but a single sentence, section 337a of the Penal Code creates many distinct offenses. It begins by the phrase "every person," and each subsequent clause is connected therewith by appropriate punctuation. It is written in the disjunctive throughout, and the several offenses therein described are apparently as distinct and independent of each other as if they had been enacted in separate sections. In general, when such form of expression is used, the effect of the language pertaining exclusively to each offense described is not affected or modified by the words used solely in describing the other offenses, but the description of each is to be construed as if it stood alone and were read in connection with the general words applying to all.
The section contains two clauses which it is necessary to compare and construe, in order to determine the sufficiency of *Page 475 the charge. Separated from the other parts of the section and placed in paragraphs in the order in which they occur, they are as follows: —
"Every person . . .
who receives, registers, records or forwards, or purports or pretends to receive, register, record, or forward, in any manner whatsoever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools upon any such result; . . .
or who, being the owner, lessee, or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this state, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for gain, hire or reward of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any such result: . . .
is punishable by imprisonment in a county jail or state prison for a period not less than thirty days and not exceeding one year."
The words "such result," in these clauses, refers to a previous clause reading as follows: "upon the result of any trial or contest of skill, speed, or power of endurance, of man or beast or between men or beasts, or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever."
The language of the first clause in order, relating to the receiving of money or things bet or wagered, is not in itself ambiguous or uncertain in meaning. As plainly as words can declare, it forbids every person from receiving money, bet or wagered by or for any other person, upon the result of a horse race, or upon any contingent or unknown event. It may require some stretch of credulity to believe that the legislature could have enacted a penal law making an act which may be so trivial a felony, but when a reading of the act discloses that it has been enacted, there can be no misunderstanding of its meaning or effect, if it stands alone and without qualification.
The complaint plainly shows that it was not intended to charge a violation of the second clause, but ex industria, to *Page 476 exclude that clause from consideration. It does not aver that the petitioner was the owner, occupant or lessee of any place of the kind specified in that clause, or at all, and it states that he became a custodian and depositary of the money "not for gain, hire or reward," thus eliminating the conditions essential to the commission of a crime under the second clause. If it describes an offense at all, it is an offense defined in the first clause. In effect, one who receives money of another becomes the custodian thereof, and conversely, one who becomes a custodian of money, receives it. If the rule that the exact language of the statute need not be followed in charging an offense and that words of like import will suffice, particularly in a complaint for a preliminary examination, is applied, the complaint in substance charges that the petitioner received the money alleged to have been wagered. If this be so, the complaint charges an offense under the first clause, if that clause is not modified, qualified, or partially repealed by the second clause. Whether or not it is so affected is the only question to be decided.
To constitute a criminal acceptance of such money under the first clause, it is necessary that it be received for the use of the parties to the bet or wager, and not as the due or right of the person receiving it. He must take it as their property and not as his own. If he receives it in payment of a debt, or as a gift, he commits no offense, and the fact that it was the identical money or thing which had been wagered by the party or parties from whom he received it, is immaterial. In that case he would be no party to the bet or wager which the law intends to denounce as criminal. In order to constitute a crime under the first clause, therefore, the person receiving the money must do so as custodian or depositary for the parties to the bet or wager and must act as such for some period of time, however brief. If that clause alone is considered, it would be immaterial that he does not keep, lease or own a place for such business or that he receives it neither for gain, hire, or reward. Under the second clause it is necessary that both of these elements shall exist to constitute the crime there defined. The second clause, in effect, excepts and permits all receiving which is not for gain, hire, or reward and which is not done in some one of the places mentioned, by one who uses or occupies such place for that purpose. It is, *Page 477 therefore, to that extent, inconsistent with that part of the first clause which forbids the receiving of such money for the use of the parties to the bet or wager anywhere, or under any circumstances. (We speak now of one who receives the money and not of one who merely owns or leases such a place and permits its use by others for such purposes.)
The rule applicable to a statute in which a later clause is found to be irreconcilably inconsistent with a preceding clause, is that the clause later in position operates as a repeal of the former clause, so far as it is inconsistent. "The part of a statute later in position in the same act or section is deemed later in time, and prevails over repugnant parts occurring before, though enacted to take effect at the same time. This rule is applicable where no reasonable construction will harmonize the parts." (1 Lewis' Suth. Stat. Const., sec. 280; see, also, Emeric v. Alvarado, 64 Cal. 609, [2 P. 418]; Pol. Code, sec. 4484;Harrington v. Rochester, 10 Wend. 551; Branagan v. Dulaney,8 Colo. 412, [8 P. 699]; Powers v. Barney, 5 Blatchf. 203, Fed. Cas. No. 11561; Ex parte Thomas, 113 Ala. 1, [21 So. 370];Hand v. Stapleton, 135 Ala. 162, 167, [33 So. 689]; Van Horn v. State, 46 Neb. 77, [64 N.W. 365]; Omaha etc. Co. v. Kragscow,47 Neb. 611, [66 N.W. 658].) Applying this rule it is clear that the provision of the first clause, so far as it relates to the mere receiving of money or property bet or wagered, is practically inoperative, and that the only conditions under which the receiving alone will be criminal are those mentioned in the second clause. As the complaint against the petitioner expressly negatives the existence of some of these conditions, and fails to aver the others, and does not charge that he either registered, recorded, or forwarded the money received, as specified in the first clause, it fails to charge an offense under either clause of the section. The petitioner is entitled to his discharge.
What we have said concerning the inconsistency between the two clauses applies only to the part of the first clause relating to the "receiving" or money or things bet or wagered. It has no necessary bearing upon so much of the first clause as relates to a person who "records, registers or forwards" such money or things. Those acts are different from merely receiving and involve other elements, intents, and results. *Page 478
It is ordered that the petitioner be released from custody under the warrant, and that his bail upon the issuance of the writ herein be exonerated.
Angellotti, J., and Sloss, J., concurred.