118 Ky. 624 | Ky. Ct. App. | 1904
OPINION of the cotiBT by
'Reversing.
The circuit court sustained a general demurrer to the following indictment: “The grand jury of Mason county, in the name and by the authority of the Commonwealth of Kentucky, accuse William Schatzman of the offense of suffering and permitting certain machine and contrivance known as 'slot machine’ to be operated on the premises in his occupation and under his control, whereby money and property and other things of value was won and Jost, committed as follows, viz.: The said William Schatzman, on the 1st day of January,. 1904, and other days before and since, within twelve months last past, and before the finding of this indictment in the county aforesaid, did unlawfully suffer and permit a certain machine and contrivance commonly known as 'slot machine,’ and which machine and contrivance is ordinarily used for gambling for money and property and for whisky, brandy, wine, ale, beer, cigars, and tobacco, and other things of value, to be operated on the premises on Second street in the city of Maysville, Ky., the more exact location of said premises and the manner and way of operating said machine and contrivance is to the grand jury unknown, whereby and at and on which machine and contrivance money and property, and whisky, brandy, ale, beer, cigars, and tobacco and other things of value were then and there won and lost, and with the permission, consent, and procurement of the said Wil
TÍie indictment is based on section 1967, Kentucky Statutes, 1903, wbicb, so far as material, is as follows: “Whoever shall suffer or permit any game or table, bank, machine or contrivance, mentioned or included in section 1960 of this chapter, to be set up, conducted, kept or exhibited in any house, boat or float, or on any premises in his occupation or under his control, or shall lease the same, or any part thereof, for that purpose, shall be»fined from two hundred and fifty ($250) to five hundred dollars ($500) for each offense.” Section 1960 above referred to, so far as material, is as follows: “That whoever, with or without compensation, shall set up, carry on, keep, manage, operate or conduct, or shall aid or assist in setting up, carrying on, keeping, managing, operating or conducting a keno bank, faro bank, or other machine or contrivance used in betting whereby money or other things may be won or lost, shall be fined five hundred dollars ($500) and costs, and confined in the penitentiary,” etc. By section 1967, whoever shall suffer any machine or contrivance embraced in section 1960 to be conducted in any house or on any premises in his occupation or under his control shall be fined from $250 to $500. The machine or contrivances included in section 1960 are a keno bank, faro bank, or other machine or contrivance used in betting, whereby money or other thing may be won or lost. It has been held that to' convict under this section it should appear that the table, machine, or contrivance was such as is ordinarily used in gambling for money or property, where the contrivance is not a keno bank, faro bank, or one of the things named in the section. - Ritfe v. Commonwealth, 18 B. Mon., 35; Commonwealth v. Kammerer, 13 S. W., 108, 11 Ky. Law Rep., 777. It has also been held that the indictment must be
Judgment reversed and cause remanded, with directions-to overrule the demurrer to the indictment.