169 Mo. App. 672 | Mo. Ct. App. | 1913
Defendant was prosecuted and acquitted in the police court of Moberly, a city of the third class, on the charge of permitting “a gambling device commonly called a slot machine . . . to be set up and used for the purpose of gaming and gambling and playing games of chance for money and property, in a certain building in said city . . . which said building was then and there occupied and used by and was in the possession of and under the control of and belonged to the said George C. Deskin who did then and there permit divers persons . . . to come together in said building and play for money and property at games of chance with, at and on said gambling device and slot machine contrary to an ordinance in relation to gaming tables, banks and devices set up or used in houses and other premises in the city of Moberly,” etc. The ordinance thus charged to have been violated was enacted April 8, 1910, and is as follows:
Moberly, Missouri, as follows:
“Section 1. Every person who shall permit any gaming table, bank or device to be set up, or used, within the city, for the purpose of gaming, in any house, building, shed, booth, shelter, lot or other premises, to him belonging, or by him , occupied, or of which he hath at the time the possession or control, shall, upon conviction, be adjudged guilty of a misdemeanor and punished by imprisonment in the city prison not more than three (3) months, nor less-than thirty (30) days, or by a fine not exceeding one hundred dollars ($100), and not less than twenty-five dollars ($25).
“Section 2. This ordinance shall take effect and be in force from and after its passage, approval and publication, and shall repeal and annul any and all ordinances in conflict with the provisions of this ordinance. ’ ’
A jury was waived in the circuit court where the cause was taken on the appeal of plaintiff and defendant was adjudged guilty and a fine of $25 and costs was assessed against him. From this judgment he appealed to this court.
Defendant objected to the introduction of the ordinance in evidence on the ground that plaintiff had offered no proof of its publication. The documentary evidence of the ordinance offered by plaintiff consisted of page 284 of a printed book entitled “Revised Ordinances, City of Moberly, 1910,” which purported to have been published by authority of the city and to contain all of its ordinances, resolutions, rules, orders and by-laws. Further the book recited that it was published pursuant to “an ordinance in relation to revising, printing and publishing the revised ordinances of the city of Moberly of 1910,” etc. The court overruled the objection and received the ordi
“Printed copies of the ordinances, resolutions, rules, orders and by-laws of any city or incorporated town in this State, purporting to be published by authority of such city or incorporated town, and manuscript or printed copies of snch ordinances, resolutions, rules, orders and by-laws, certified under the hand of the officer having the same in lawful custody, with the seal of such city or town annexed, shall be received as evidence in all conrts and places in this State, without further proof; and any printed pamphlet or volume, purporting to be published by authority of any such town or city, and to contain the ordinances, resolutions, rules, orders or by-laws of such town or city, shall be evidence, in all courts and places within this State, of such ordinances, resolutions, rules, orders or by-laws.”
We find the proof of the ordinance meets the requirements of this statute and constitutes prima facie evidence that the ordinance was duly enacted and published. Defendant was not precluded from showing that the ordinance bad not been published as provided by law but the burden of proving that fact was on him. [City v. Foster, 52 Mo. l. c. 517; Campbell v. Railway, 175 Mo. l. c. 176; Town of Canton v. Ligon, 71 Mo. App. 407; McQuillin on Municipal Corp., sec. 391.] Since he offered no evidence attacking the validity of the ordinance on this point we assume that it was regularly enacted and published.
Next it is urged by defendant that the ordinance is void for the reason that it classes as a misdemeanor and punishes with a fine an offense denounced as a felony by the statutes. The argument is based on the erroneous idea that the class of offenses dealt with in the ordinance is the same as that covered by section 4750, Bev. Stat. 1909. The ordinance relates only to offenses that are classed as misdemeanors in sec
Finally counsel for defendant argue that the judgment should be reversed on the ground that the slot ■machine defendant permitted to be set up and operated on his premises was not a gambling device. Defendant maintained the machine and allowed it to be used in a restaurant he owned and o'perated in the city of Moberly. The machine which, as stated, was called an “Automatic Gum Vender” contained a compartment in which was kept a number of small packages of chewing gum. The quantity and quality of the gum in each package appears to. have been much inferior to that usually found in packages sold on the market for five cents each hut for the purposes of the present discussion we shall assume that the player who obtained from the machine a package of gum in exchange for five cents received merchandise that
In legal significance the term “gaming device” and “gambling device” are synonomous (State v. Mohr, 55 Mo. App. 329) and include all instruments, implements, devices and means which are made and used in unlawful gaming. Thus a pack of cards is held to be a gaming device when employed in gambling (State v. Mohr, supra; State v. Scaags, 33 Mo. 92; State v. Herryford, 19 Mo. 378), though, as is well
Among the definitions of gaming to be found in the books are the following: “A contract between two or more persons by which they agree to'play by certain rules'at cards, dice, or other contrivance and that one shall be the loser and the other the winner.” [Bouvier’s Law Dict. 620.] “To constitute gaming there must not only be betting upon the determination of an event, but the course of action to bring about such an event must have been arranged and commenced with the view'to determine the bet.” [State v. Smith, 19 Tenn. 99; Ansley v. State, 36 Ark. 67.]
‘ ‘ The essence of gaming and wagering is that one party is to win and the other to lose upon a future event, which, at the time of the contract, is of an uncertain nature,' that is to say if the event turns out one way A will lose, but if it turns out the other way he will win.”
In no field of reprehensible endeavor has the ingenuity of man been more exerted'than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified and cunning mechanical .inventions.
The chief element of gambling is the chance or uncertainty of the hazard. It is not essential that one of the party to the wager stands to lose. The chance taken by the player may be in winning at all on the throw or in the amount to be won or lost and the transaction should be denounced as gaming whenever
We approve the doctrine expressed in the following quotation from the opinion in Lang v. Merwin, supra: “In the case before us it is idle to assume or concede, that the person putting his five cents into the machine may be doing so merely as a means or mode of buying a five cent cigar. It is idle to deny that the impelling motive is the hope of getting other cigars for nothing. If the machine did not afford that chance it would not be used. True, the cigar dealer sets up the machine to increase his trade and is recouped by that- increase for any losses, so that in the end he loses nothing, but he does .so by arousing and stimulating the gambling propensity, the very propensity the Legislature evidently seeks to repress. The element of chance is the soul of the transaction. The operator hopes by chance to get something for nothing. The dealer hopes chance will save him from giving something for nothing. Each is pecuniarly interested adverse to the other in a result to be determined solely by chance. To use the language of the street ‘it is a gamble’ which will win, and we have no doubt the transaction is ‘gambling’ in the statutory sense of the word.”
The only important difference between the device
The judgment is affirmed.