Kennon v. King

2 Mont. 437 | Mont. | 1876

Wade, O. J.

There is but one assignment of error in this case, and it arises upon the following instruction given by the court to the jury:

“ The jury are instructed that the game usually denominated ‘ poker,’ as played with cards, is a game of chance. And if the jury find, from the evidence, that the defendant kept a room in which, with his knowledge and consent, this game was played during the months of January, February and March, 1815, you must find for the plaintiff.”

The defendant insists that the question, whether the game of cards, usually denominated “ poker,” is a game of chance, is a question of fact for the jury, and not of law for the court, and, therefore, that the instructions were erroneous.

The action was brought by virtue of the provisions of a statute of the Territory that provides as follows : “Any person * * * who shall keep any house, or saloon, or room, where any banking game, or other game of chance, is dealt or played for money, or any thing representing money is used, * * * shall pay a license,” etc.

As a general proposition, we should say that the construction to be put upon a particular statute, and the words therein used, and its force and effect, and to what it applies, is a question of law for the court, and not of fact for the jury. Certainly, unless technical or ambiguous words, or words of a local or provincial meaning are used, no testimony would be admissible as to what was intended, or to apply the statute to its proper subject-matter.

The same rule would apply as to words in common nse in a pleading. The definition of words in general nse and of a fixed and universal meaning, their interpretation, or whether they come within the scope, or object and purpose of a statute, are matters of law for the court, and such meaning cannot be varied or explained by testimony. It is not the province of juries to supplant the nse of dictionaries, and to declare what is meant and intended by the use of ordinary words of a general nature and unambiguous in their character. Otherwise, a common word in general use might mean one thing in one locality and exactly the' reverse in another, depending upon the peculiar notions of the jury to whom the question was submitted. Juries cannot be permitted to pervert, vary or change the established meaning or use of the English language. And it is improper to submit to a jury, upon the testimony of witnesses, the meaning of an unambiguous word in common use.

Experts may explain the meaning of “ technical, or ambiguous words,” but the word “poker,” as applied to a game of cards, has, so far as we know, but one meaning, and its definition was correctly given in the instructions of the court. ¥e see no reason for calling proof as to the meaning of this word that would not apply, with 'equal propriety, to the words deed, lease, contract, river, city, church, or any other word in general use, and whose meaning is universally understood.

In Brown v. Brown, 8 Metc. 546-7, Shaw, Ch. J., said: “ The meaning of words, and the grammatical construction of the English language, so far as they are established by the rules and usages of the language, are prima facie matters of law, to be construed and passed upon by the court. But language may be ambiguous and used in different senses, or general words in particular trades and branches of business, as among merchants for instance, may be used in a new, peculiar of technical sense. And, therefore, in a few instances, evidence may be received from those who are conversant with such branches of business, or such technical or peculiar use of language, to explain or illustrate it.”

But in the case at bar there is nothing to indicate that the game of cards, commonly called “ poker,” as used in the pleadings and as explained in the instructions, had any new, peculiar or technical meaning. On tbe contrary, tbe reverse does appear, for tbe complaint declares tbat tbe game played was tbe game at cards known as tbe game of. “poker.” And for a word thus known and denominated, and taking it to be used in its popular and general sense, as we must, tbe court ruled correctly in declaring its meaning as a matter of law, and in refusing to submit tbe question on proof to the jury.

Tbe pleadings admit' that a game ' of cards, known as “ poker,” was played, the answer only denying tbat such game is a game of chance. Tbe court properly instructed tbe jury, as a matter of law upon the subject, and tbe judgment is affirmed, with costs.

Judgment affirmed