25 Ohio C.C. (n.s.) 193 | Ohio Ct. App. | 1915
Charles A. Nassr, plaintiff in error, had the control of certain premises adjacent to Walbridge Park in the city of Toledo, which he
It appears from the bill of exceptions that the tenant, Upton, had been in the amusement business for a number of years, and that he conducted on the premises the sale of post cards, souvenirs and stamps, and conducted certain games called a box-ball alley, a ball rack, horse-racing machine, and a cane rack, where rings were thrown over canes. The tenant, on being called for cross-examination, testified that the horse-racing game was a machine with eight artificial horses, which were ball bearing and revolving-, two on each track, with 112 numbers on the machine, and that the horses were numbered 1 to 8, and that in connection therewith there was a board with numbers, the duplicates of those on the machine. He further testified that he sold paddles, bearing the numbers of the horses, at -five cents apiece; that “if your horse stops at 64 then whatever is on 64 on the board is yours;” that there was a separate part with numbers, and prizes attached to each number, and that there was' no way .of determining in advance where the horses would stop and no difference in the value of the prizes
It was contended by the defendant that the plaintiff was not entitled to recover the premises in forcible detainer because he was not prosecuting the action in good faith, because the games conducted were not in violation of the statute for the reason that they were games of skill and dexterity, because the prizes were all of substantially the same value, and because occasional violations of the gaming and lottery laws would not justify a forfeiture of the lease. In pursuance of these claims and others of like character made by the defendant, sixteen separate requests to charge the jury were submitted to the justice of the peace and the jury were so charged. The statute of Ohio, cited supra, provides, in substance, that when premises are occupied for “gaming or lottery purposes,” the lease or agreement shall be void at the instance of the lessor, who may at any time obtain possession by action of forcible detainer before a justice of the peace. The statute further provides that if a person knowingly permits premises to be so used and occupied and fails forthwith to prosecute in good faith an action for the recovery of the premises, the lessor shall be considered as a principal in carrying on the business of gaming- or lottery on the premises.
It is contended that the transactions shown by the evidence do not constitute violations of the statute because of the evidence that the prizes were of equal or substantially equal value. If it appeared from the evidence that every patron on making an investment would receive a prize, much foundation might exist for the claim made, if the prizes were of equal or substantially equal value, but if one invested five cents in one of the games conducted by the defendant and if, under the conditions on which the game was operated, he might fail to win any prize, the transaction would be within the terms of the statute; nor is the transaction relieved from the inhibition of the statute by reason of the fact, if it be a fact, that the games were games of. skill and not purely games of chance. The question is one which must be determined in each jurisdiction by 'the language of the statute there controlling, and under the Ohio statute it is unlawful to occupy any premises for gaming or lottery purposes, and it is immaterial whether the transaction involves skill or chance or both. See Ulsamer v. State of Ohio, 11 O. D. Re., 889, a decision of the circuit court . sitting in Gallia county. The cases are collected in - Words .and. Phrases,, under the title “.Gambling-Gaming.” ■. /.
.At the .'request of the defendant ■ the jury were charged that the plaintiff could not prevail unless his claim was established by clear and convincing proof .of the defendant's guilt. ■ We understand that the ordinary rule requiring a case to be. established by a preponderance of the evidence is the
During the trial of the case it developed that Nassr had sold the building on the premises to Nora Mullen and that she transferred the same back to him on the morning on which the trial before the justice was commenced. It is contended that by reason of these facts the plaintiff was not entitled to maintain the action. The lease to the defendant, Upton, had not, of course, by its terms expired; neither had the plaintiff parted with his title to the ground occupied by the building. We think the sale of the building would not of itself prevent the plaintiff from maintaining the action. The purchaser had not taken possession, and if the plaintiff could not maintain the action then he would continue liable under the criminal laws for future violations, because he was still the lessor of the real estate so far as the defendant is concerned. The rule in such cases is concisely stated in 24 Cyc., 1415, as follows:
‘While it has been held that the landlord, after having executed a valid lease to a third person, has no longer a right of possession enabling him to maintain an action to recover possession' from a former tenant, the better rule would appear to be that he has such an interest in the possession as will enable him to sue.”
Numerous cases are cited sustaining this proposition, and, among others, the case of Cahn v. Hammon Bldg. Co., 8 O. D. Re., 656.
Judgments reversed and cause remanded.