54 Colo. 272 | Colo. | 1913
delivered the opinion of the court:
An information in two counts was filed against plaintiff in error, upon which he was tried and • convicted. The first count was under section 1791, R. S., 1908, and charged that he “unlawfully did keep and exhibit a certain gaming table, establishment, device and apparatus, * * * to win and gain money by gambling,” etc. The second count was under section 1792, R. S., 1908, and charged that he “unlawfully did play at a game for a sum of money or other property of value, and did make a bet and wager for a sum of money or other property of value, upon the result of such game,” etc.
The proven or admitted facts are: that plaintiff in error made books and sold pools upon certain horse races held under the auspices of the Overland Jocky Club at Overland Park race tracks, in the city and county of Denver on a certain day. Preceding the running of each race the plaintiff in error entered the names of the horses competing in the race, upon a blackboard placed upright upon a table or platform prepared for that purpose, adjoining the grand stand at the race tracks; and, in conjunction with others employed for the purpose, received the money bet upon the races, giving in exchange therefor cards upon which was recorded the bet; and, after the result of each race, paid the sums won to the winners, upon presentation and surrender of the cards, keeping the balance,
Much of the argument of counsel is predicated upon the assumption that in order to sustain the judgment of conviction, it is essential to hold that horse racing is unlawful within the intent of these statutes. The assumption is erroneous and
As defined in the Century dictionary, it is “a contest for ■success or superiority in a trial of chance, skill or endurance, or of any two or all three of these combined: as, a game at ■cards, dice, or roulette; the games of billiards, draughts, and dominoes; athletic games; the floral games. The games of ■classical antiquity were chiefly public trials of athletic skill and endurance, as in throwing the discus, wrestling, boxing, leaping, running, horse and chariot-racing, etc.” — Desgain v. Wessner, 161 Ind. 205; People v. Weithoff, 51 Mich. 203.
A horse race, according to the weight of authority, though there are decisions to the contrary, is a game within the meaning of the statutes against gaming. — 20 Cyc., p. 884; Thrower v. State, 117 Ga. 753; Swigart v. People, 154 Ill. 284.
Whether it is such within the meaning of the sections under consideration, we must now determine. In Corson v. Neatheny, supra, we held that a horse race was a game within the intent of section 1796, R. S., 1908, citing: Boughner v. Meyer, supra; Talman v. Strader, 23 Ill. 493; Shropshire v. Glascock et al., 4 Mo., 536; Boynton v. Curle, Id. 599.
As the section of the statute involved and construed in the Corson-Neatheny case affects only contracts, etc., entered into as a result of gaming, or in which the consideration was for money, property or other valuable thing won by gaming, declaring them void and of no effect, and the decisions cited therein are in civil cases, it is claimed that the rule announced' and applied therein is not applicable in the construction of1 the criminal sections. A sufficient answer thereto is, that the alleged civil section involved and construed in that case, and the criminal sections upon which this prosecution is based, are
We must ascribe the same meaning to the same words •occurring in different parts of the same statute, unless it clearly appears therefrom that a different meaning was intended.— Dixon v. People, 53 Colo. 527; 127 Pac. 930.
. This does not appear from the statute in question. On the contrary, it is clearly evident that the same words in the several sections of the act were used in the same sense, and the purpose of the law-making power was to suppress gambling, which, as used in the act, includes betting and winning money ■or property upon any game whatsoever. The title of the act of 1866 is, “An act to suppress gambling and gambling houses,” and that law has been in no' substantial respect •changed or modified by subsequent legislation. We can not ■assume that the law-making power used the words “game” •and “gaming” in a different sense in one section of the statute' from that in which it employed them in other sections of the ■same act. In the passage of each of these sections the legislature must have had in mind the immorality of the acts and the ■evils resulting. Under section 1791 the party "violating the provisions thereof is to be punished by fine and imprisonment; ■under section 1792 the offender is subjected to a pecuniary penalty, while under section 1796 certain contracts, etc., the ■consideration of which has arisen from the practice of the immoral and inhibited acts, are rendered nugatory and of no effect. So, in order to effectually suppress gambling, the act subjects the violator thereof to punishment and makes it impossible, 'upon the instruments designated, for any person to reap the fruits growing out of the acts prohibited.
But Corson v. Neatheny, supra, as an authority is questioned. It is claimed that this court in basing that opinion upon Tatman-Strader, supra, did not take into consideration the difference between the Illinois statute and the Colorado
Counsel for plaintiff in error maintain that the history of the several legislative acts on the subject of gambling in this 'state shows conclusively that horse racing is not a game within the meaning thereof, and that the holding in Corson v. Neatheny, supra, in that regard is illogical and incorrect. We can not concur in this view. On the contrary, when we bear in mind the provisions of the several acts, their titles, nature, the history of their enactment, and the state of the law when passed, the conclusion is inevitable that the legislative intent, as the law now is, was to- prevent public gambling, and includes the risking of money or anything of value between two or more persons, on a contest of either chance, skill or hazard, where one must be the loser and the other the gainer.
Our first legislation on the subject is found in the Session Laws of 1861, p. 313, under the heading: “Offenses Against the Public Morality, Plealth and Police,” embodied in “An act concerning criminal jurisprudence.” It consisted of but two
The second act upon the subject was in 1864 Session Laws, p. 96, entitled: ■ “An act to suppress gambling and gambling houses.” Section 1 thereof1 makes it a criminal offense for any person to keep a house, etc., “o>r place resorted’’ to for the purpose of gambling, or permit or suffer any person” therein “to play at monte, three card monte, or any other game at cards, dice, faro, roulette, or any" other game whatever for money or other things of value.” The second section, subjected any person to fine and imprisonment who should, in such gambling house or place, “play at any game for any sum of money or other property of value” or make therein a bet or wager for money or other property of value. • Section 3 made all contracts, when any part of the consideration thereof was for money or other valuable things won or lost, laid or staked upon any game or bet or wager, absolutely void and of no effect.
In argument it is pointed out that in this act we find for the first time the words “any other game” associated with
The words “gaming table, establishment, device or apparatus,” as used in the statute, do not mean literally instrumentalities with appliances adapted and essential to particular games, but includé any species of table, establishment, device or apparatus kept and used for gambling, winning, betting or gaining money- or other property. It is the use to which the article or thing is appropriated which renders the keeping or exhibition thereof unlawful within the meaning of the sections here involved. — Toney v. State, 61 Ala. 1; Estes v. State, 10 Tex. 300, 308; Chappell v. State, 27 Tex. App. 310, 312; Jones v. Okla. Ty., 5 Okla. 536.
“Gaming table” is said to be synonymous with “gaming house.” 20 Cyc., p. 967. It means a place kept for gambling and supplied with materials for that purpose. It may include any kind of contrivance used in betting. Cyc., supra, Garvin v. State, 87 Tenn. (13 Lea) 162. This is made more certain by the word “establishment” used in connection therewith. One meaning of this word is, the place of business, including grounds, furniture, equipage, etc., with which one is fitted out ; also that which serves for the carrying on of a business. So a device is that which is devised, or formed by design; a con
A gaming table, therefore, consists in the essentials of the game. A table in the literal sense need not exist. A game played and something of value bet are the essential elements of a gaming table, establishment, device or apparatus as used in this act. In Garvin v. State, supra, Desty’s Amer. Crim. Law, section 102b, is quoted as follows: “Setting up a gaming table consists in providing the essentials of the game, and a table in the literal sense need not exist, nor money or property be staked, but credit may be substituted, yet a game must be played and something bet.” It is then said, page 173; “If this law is sound, and the proof shows it is, a gaming table is any place convenient for and in which the game may be played. If ‘setting up a gaming table consists in providing the essentials/ and a real table is not necessary, then the room, the hall, the house or other place used for gaming purposes, is one of the indispensable ‘essentials’ of a gaming table. * * * A house, etc., could not be kept for the conduct of the prohibited games unless the tools of the game were also kept. A house, hall, or room kept for a purpose must be supplied with the materials for that purpose. As already intimated, all these combined constitute a gaming table, or gaming house, the terms are synonymous in gaming vernacular.”
Applying these rules to the facts of this case, we think it is clear that plaintiff in error kept and exhibited a gaming table, establishment, device and apparatus to win or gain money or other property, and played at a game and made a bet on the result thereof for a sum of money. He had a place, to-wit: the space adjoining the grand stand, kept for gambling, and supplied with materials for that purpose, that is, the table,
As said in Joseph v. Miller, 1 New Mex. 621, 626 : “We are unable to discover any distinction in general principle between the various methods that may be adopted for determining by chance who1 is the winner and who the loser of a bet— whether it be by throwing dice, flipping a copper, turning a card, or running a race. In either case it is gambling. This is the popular understanding of the term ‘gambling device’ and does not exclude any scheme, plan, or contrivance for determining by chance- which of the parties has won, and which has lost a valuable stake. That a horse-race, when adopted for such purpose, is a ‘gambling device,’ there can be no doubt.” To the same effect and quoting the above language in James v. State, 4 Okla. Crim. Rep. 587. A horse race is a game, and selling pools or making books upon the result of a horse race is gaming, because it is betting on a game, and is unlawful, though the game itself be not unlawful. Swigart v. People, supra, affirming the same case in 50 Ill. App. 181. — Edwards v. State, 8 Lea 441; Thrower v. State, supra; People v. Weithoff, supra; Miller v. U. S., 6 D. C. 6.
We do not think the act is in any sense a legislative construction of the gambling statutes. On the contrary, its legal effect simply suspended the operation of the gambling statutes as to certain of the inhibited acts herein, but only upon one day in each year, in a designated and limited space. In other words, it was like unto a license authorizing the doing of certain acts, at a particular time and place, which, without the license and at any other time or place, would be unlawful. Because the law-making power authorized pool-selling and book- ■ making upon horse races occurring, at the time, upon the limited territory described in the act of incorporation, and under the control of the incorporated association, does not establish or manifest a legislative intent to authorize such acts upon like events occurring elsewhere, at other times, nor does it in any sense indicate that such acts are not within the meaning of, and made unlawful by, the statutes aforesaid, but rather that
But it is said that prior to this prosecution, neither lawyer nor layman considered acts like those of plaintiff in error as being within the inhibition of the statutes. However that may be, it does not subtract from the legal meaning of the words, used in the legislation which corresponds precisely with the historical and popular meaning. It is a matter of common knowledge that many laws are enacted which lie dormant, in whole or part, for years. We know1 of no court, however, that has held that things clearly within the letter and spirit of an act are excluded from the operation thereof because of such desuetude. The judgment of conviction is affirmed.
Judgment affirmed.