286 Mass. 405 | Mass. | 1934
These are two complaints charging the defendants with keeping and maintaining a gaming nuisance in the city of Boston, i.e., premises “resorted to for illegal gaming.” The complaints were tried to a jury and resulted in verdicts of guilty as to both defendants. Upon motions the complaints were consolidated for the purpose of filing and presenting the exceptions of the defendants to the Supreme Judicial Court.
There was further testimony to the effect that if nobody declared “Beano” by individually so scoring “four hits in a row,” the announcer began to call from the targets of the other players the numbers pierced by such other players on their individual targets, and instructed all players on whose score cards such numbers appeared to cover the same with beans and, upon any player getting “five in a row” in this way, to declare “Beano.” Such player was declared the winner, and received the coupon in the same way as above stated. It is possible to make “Beano” upon the hits of the other players.
A witness called by the defendants, who was the assistant manager of the defendant corporation and who was the announcer, testified that from six to fifteen winners per day won “Beano” by themselves piercing four numbers on their own targets which appeared in a row on their score cards; that about twenty-five per cent of the winners so pierced three such numbers; that fifty to sixty per cent so pierced two such numbers; and that seventy-five to ninety per cent so pierced one number, and that seldom, if ever, did a person win “Beano” without so piercing one number.
At the close of the testimony the defendants duly filed written motions for directed verdicts of “not guilty.” These motions were denied subject to the exceptions of the defendants. The defendants, in writing, thereupon
The judge charged the jury in part as follows: “Now, what is illegal gaming? Our Supreme Court as far back as 1860 has decided in the case of Commonwealth v. Gourdier, . . . [14 Gray, 391] what illegal gaming is, and in that case the court said: ‘To play at any game of chance or skill, on the issue of which money, or property having any value, depends, is illegal. gaming.’ ... It may or may not help you to determine whether or not the game is a game of skill or chance. That is not the determining factor. The question for you men to decide is whether or not any money or property having any value depends upon the outcome of this game whether it be of skill or of chance. That is the question that you must determine. . . . But the issue, after all, on the evidence is, as I said before, be it a game of chance or be it a game of skill, you have got to determine this question, Is the final result that that man gets after playing that game, money or property having any value? Does it depend upon his skill, or does it depend upon his chance? If you find that the money that he obtains or the prize that he obtains is induced in any way by the playing of that game, either by chance or by skill, then you can come to the conclusion that that constitutes illegal gaming under óur law.” The defendants excepted to the foregoing parts of the charge and then made the following request: “I am requesting you now to instruct the jury that gaming as an illegal act differs from the playing of games, and is synonymous with gambling. That gambling as an illegal act means that
The motions for directed verdicts for the defendants were denied rightly. The evidence for the Commonwealth was undisputed in large part, and was qualified by testimony for the defendants only in respect to the percentage of times a player had won “Beano” by piercing on his own target four numbers, three numbers, two numbers or one number appearing in a row upon his own score card, and how often “Beano” was won by the player covering some numbers on his card which had been pierced by other players upon their own targets. Putting to one side the right of the jury to believe or disbelieve witnesses for the Commonwealth or the defendants, it is plain that the player who, through his skill, pierces one or more of his own numbers has a better chance of winning than the players who are less successful in piercing their own numbers. On the evidence the order in which the announcer calls off the numbers pierced by the darts of various players is pure chance. He may call at pleasure from any target of any player. Further, it is pure chance that the numbers of player A should be pierced by darts of other players rather than that the numbers ©f player B should be so pierced and announced. Since the majority of the games could have been found by the jury to be decided by this method, and it could have been found that it is entirely possible that a player who has .pierced only one, or even none, of his own numbers may be the winner of the game in spite of the fact that other players have pierced two or three of their own numbers, the jury could find that the element of chance dominates, and that the element of skill is infinitely small if it is to be considered at all. In “Beano” skill may be thwarted by chance except in the rare instances when a player pierces a certain four num
We pass to the consideration of the defendants’ exceptions to the refusal of the trial judge to give the requests, to the exceptions to the charge, and to the refusal to instruct the jury at the close of the charge.
After reading from Commonwealth v. Gourdier, 14 Gray, 390, 391, that “To play at any game of chance or skill, on the issue of which money, or property having any value, depends, is illegal gaming,” the trial judge immediately qualified this instruction by saying: “Nobody has ever contended that legitimate athletic contests, or games of any kind in which contestants take part, even though there are prizes offered, is illegal.” See St. 1931, c. 331; now G. L. (Ter. Ed.) c. 271, § 22A. In a word “gaming” is used synonymously with the word “gambling” in our decisions and statutes. Commonwealth v. Taylor, 14 Gray, 26, 29. G. L. (Ter. Ed.) c. 139, §§ 14, 15. G. L. (Ter. Ed.) c. 137. The word “game” is very comprehensive, and embraces any contrivance or institution which has for its object the furnishing of sport, recreation or amusement. “Gaming for money or other property” is illegal. White v. Buss, 3 Cush. 448, 451. There was no error in the refusal of the judge to give in terms requests numbered 1, 2 and 3. The judge instructed the jury that “Nobody has ever contended that legitimate athletic contests, or games of any kind in which contestants take part, even though there are prizes offered, is illegal”; and said “be it a game of chance or be it a game of skill, you have got to determine this question, Is the final result that that man gets after playing that game, money or property naving any value? Does it depend upon his skill, or does it depend upon his chance? If you find that the money that he obtains or the prize that he obtains is induced in any way by the playing of that game, either by chance or by skill, then you can come to the
Exceptions overruled.