J. F. ENGLE and JACK SHOWELL, Appellants,
STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellants.
Mr. John W. Corbin, County Attorney, Mr. Lin Orme, Jr., and Mr. Richard G. Johnson, his Deputies, for Respondent.
[53 Ariz. 461] LOCKWOOD,
J. F. Engle and Jack Showell, hereinafter called defendants, were informed against by the county attorney of Maricopa county for the crime of maintaining a public nuisance. The charging part of the information, so far as material to the determination of this case, reads as follows:
"The said J. F. Engle and Jack Showell on or about the 28th day of June 1938, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there, wilfully, unlawfully and indecently keep and maintain a public nuisance, a misdemeanor, by then and there, in and about those certain premises being and situate at No. 27 South Central Avenue, City of Phoenix, Maricopa County, State of Arizona, and commonly known as the 'Western News Exchange,' keeping and maintaining a common gaming and gambling room and house, said gaming and gambling room and house aforesaid being kept and maintained as aforesaid by said defendants then and there, wilfully, unlawfully and indecently keeping and maintaining a place and room in and upon said premises, situate as aforesaid, for the purpose of permitting large numbers of persons to daily, commonly, notoriously, habitually and publicly congregate and assemble for the purpose of betting and wagering with said defendants as hereinafter alleged and wherein, pursuant to said defendants' purpose aforesaid and with their permission and at their invitation, large numbers of persons, in number in excess of twenty-five but the exact number being to the County Attorney unknown, did daily, commonly, habitually, publicly and notoriously congregate and assemble for the purpose of wagering and betting various sums in lawful money of the United States of America, the exact amounts thereof being to the County Attorney unknown, with said defendants, upon the outcome and
result of horse races then being daily run, held and conducted by persons whose names are to the County Attorney unknown at places outside of the boundaries of the State of Arizona, the exact places being to the County Attorney unknown, and said persons so daily, commonly, [53 Ariz. 462] habitually, publicly and notoriously congregating and assembling as aforesaid did daily, commonly, habitually, publicly and notoriously bet and wager with said defendants large amounts of lawful money of the United States of America, the exact amounts thereof being to the County Attorney unknown, and said defendants did then and there, daily, commonly, habitually, publicly and notoriously bet and wager large amounts of lawful money of the United States of America, the exact amounts thereof being to the County Attorney unknown, with said persons so congregated and assembled as aforesaid, upon the outcome and result of said horse races, daily run, held and conducted as aforesaid, and said defendants did then and there, indecently, unlawfully and wilfully, publicly accept, in the presence of all persons so congregated and assembled, bets and wagers, made by such persons and did publicly receive the money so bet and wagered upon such horse races and did publicly and in the presence of all persons so assembled and congregated pay to any of said persons winning bets and wagers made with said defendants as aforesaid, the money so won by such person or persons; that said gaming and gambling room and house so kept and maintained by defendants was then and there indecent and offensive to public decency; that said gaming and gambling room and house, so kept by said defendants as aforesaid interfered with the comfortable enjoyment of life by a considerable number of persons, citizens and residents of Maricopa County, to-wit, in excess of one hundred, the exact number of persons so interfered with by said nuisance so kept and maintained by defendants being to the County Attorney unknown."
The defendants appeared and demurred to the information, and then, without waiving their demurrers, entered into a stipulation of facts. This stipulation, in substance, was as follows. The defendants occupied the room charged in the information, in which they conducted the business of taking and accepting bets upon the result of horse races run in states other than Arizona, and the paying of said wagers to the [53 Ariz. 463] winners, if any. These premises are open to the public and large numbers of persons, never less than twenty-five and sometimes as many as one hundred, daily assemble there, with defendants' permission and invitation, and wager large amounts of money with the defendants upon the result of certain horse races. Previous to the running of the race, patrons of the exchange select a horse or horses upon which they wish to bet, and the defendants receive all money so wagered by their patrons upon the races. When the bet is placed, a record is kept by the defendants of the amount bet and the horse chosen. The progress of each race and the result thereof is telegraphed to the defendants from the states in which the race is run and the wagers are then settled in accordance with the odds fixed and determined through the pari mutuel machines in use at the parks where the races are run, with these limitations: no matter what the odds may be as established by the pari mutuel, the defendants never pay off wagers at greater odds than sixteen to one, but they pay regardless of whether the amount necessary is greater or less than total taken in by then as wagers. These wagers made by defendants with their patrons are not registered in any pari muntuel machine, nor do they have any effect whatsoever on the odds paid on the winning horses. These odds are determined solely by the pari mutuel machines at the parks where the races are run. It is admitted by defendants that the operation of the business described as above interferes with the comfortable enjoyment of life by a considerable number of persons in Phoenix.
The court overruled the demurrers to the information, and on the above stipulation of fact found that the defendants were guilty of maintaining a public nuisance, under section 4693, Revised Code of 1928, which reads, so far as material, as follows:
[53 Ariz. 464] "Public nuisance; maintaining; penalty. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property... by any considerable number of persons,... is a public nuisance, and is no less a nuisance because the extent of the annoyance or damage inflicted is unequal. Every person who maintains or commits any public nuisance, the punishment for which is not otherwise
prescribed,... is guilty of a misdemeanor." (Italics ...