Lewiston evening teller. [volume] (Lewiston, Idaho) 1903-1911, 1906-03-05
Supreme Court Upholds
Sentence Imposed
at WeiSer
Convicted Men Must Pay Fine $29G
Each and Spend Three Months
In the County Jail.


has handed down an opinion refusing
the writes of habeas corpus asked for
by the three men convicted of gambl-
ing at Weiser. in which they alleged
that the punishment meted out to them
by Judge Smith was greater than the
statutes permitted.
The antigambling law of the state
provides that the punishment Of men
convicted of gambling shall be by
fine not less than $500 or Imprisonment
In the county jail not less than four
months" 1t was contended by the
counsel for the three prisoners, Will
liam Burgess. John Bailey and John
imposed under this provision of the
statute that included both fine and i'm
prsonment.
The supreme court. says the States-
man, held that the punishment express
ed in the statute being only the mimi
mum punishment provided. and the Of
fense being specifically made mis-
demeanor, any punishment might be
provided that the court saw proper, IL 1t
was not less than that expressed In the
gambling statute nor greater than that
permitted under the general misde-
meanor law-"imprisonment in coun-
ty jail not exceeding six months, or
by fine not exceeding 5000, or by both"
The sentence imposed by Judge
Smith upon each of the three men came
within these limits. and was therefore
approved, the supreme court refusing
the habeas corpps writs applied for.
The sentence Of Judge Smith was for
each to pay Rne Of $3.50 and serve
term OF three months IN the county
jail.
Opinion Of tho Court.
The decision OF the court Ia by JUS
tice Ailshie, Chief Justice Stockslager
and Justice Sullivan concurring. The
opinion Is as follows:
1.-THE contention Is made by the Pc
titioners that under section / OF the
anti-gambling act (1SsS session laws,
3S9) the court was without Jurisdiction
and authority to impose sentence of
both fine and imprisonment. Section 4
of the law in question, after enumer-
ating the acts prohibited, declares that
any one who commits any OF the for
hidden acts lis guilty OF f1pisde-
meanor and Ia punishable by fine not
less than 5000 or imprisonment In the
county jail not less than four monthss
I'm State VS.. Mulkey, Idaho cit. -
Pac. II, the contention was made that
the anti gambling law was urconsti-
tutional and void for the reason that II
only fixed the minimum penalty to -
imposed for its violation and .estab-
lished no maximum penalty whatever.
This court answered that contention n
the following manner.
""The act in question iixes the min-
imum punishment, but does not fix the
maximum. Section Of said act
makes the offense q misdemeanor.
Section 6313 Of the revised statutes.i II
~ follows: Except in cases wheres :
different punishment y prescribed ~
this code. every offense declared tofbo
4 misdemeanor. 10 punishable BY Inn
prisonmen in ! county jail not exceed
| Ing six months, Or ~ fine not exceed
ing $500. or by BOTH Reading rhe act
in question with raid section 6313 q
the revised statutes. both the maximun
and minimum punishment are pre-
vided.'
The validity Of this raw again canaG
under sconsideration In. In re R0Wland
d idaho He6. 70 pac e1O- and th6zC