131 P. 636 | Utah | 1913
Appellant was convicted in the city court of Salt Lake City, and, upon appeal to the district court of Salt Lake County, was again convicted for the violation of a certain ordinance of said city. The appeal to this court is based upon the claim that, for the reasons hereinafter stated, the ordinance in question is invalid. The portions of the ordinance that are deemed material are as follows:
“Section 1. All gambling and gaming of every kind and description, by playing at cards, dice, faro, roulette, keno, poker, slot machines, devices known as trade machines, or any like machines or devices hy whatever name known, or any other contrivance or device by or which money, merchandise or other thing of value may be staked, bet or hazarded, won or lost, upon chance> or at any other game or scheme of chance whatever, ... for money or other property or thing of value within Salt Lake City, is hereby declared to be unlawful.
“Sec. 6. It shall be unlawful for any person to keep or maintain any slot machine, or trade machine, or any like machine or device, for the purpose of suffering or permitting other persons to play at or with the same for money or anything of value.
“See. 7. It shall be unlawful for any person, either as owner, lessee, agent, employee, mortgagee, or otherwise, to operate, keepi, maintain, rent, use, or conduct, within the City*406 of Salt Lake, any dock, tape, slot, trades or card machines, or any other machine, contrivance or device upon which money is staked or hazarded upon chance, or into which money is paid, deposited or played, upon chance, or upon the result of the action of which, money or any commodity or merchandise, or any other article or thing of value is staked, hazarded, won or lost upon chance.
“Sec. 8. It shall be unlawful for any person, either as owner, lessee, agent, employee, mortgagee or otherwise, to operate, keep, maintain, rent, use or conduct within the City of Salt Lake any machine, contrivance, appliance or mechanical device upon the result of the action of which money or any commodity, merchandise or other valuable thing is staked or hazarded, and which is operated or played by placing or depositing therein any coins, substitutes for coim, checks, slugs, balls or other article or device, or in any other manner, and by means of the action whereof, or as a result of the operation of which, any merchandise, money, representative or article of value, check or token redeemable in, or exchangeable for money, or any other thing of value is won or lost, or taken from or obtained from such machine, when the result of the action or operation of such machine, contrivance, appliance or mechanical device is dependent upon hazard or chance.”
The ordinance became effective March 1, 1912, and for each violation thereof imposes a fine not exceeding fifty dollars or imprisonment not exceeding thirty days in the city jail, or both such fine and imprisonment.
The complaint filed against appellant was based on sections 7 and 8 of said ordinance, which sections we have given in full. The material part of the complaint is as follows: That on the 16th day of March, 1912, appellant, in a certain room in Salt.Lake City, did “unlawfully keep, maintain, use, and conduct five certain machines, known as trade or card machines, being then and there contrivances and devices into which money was and is paid, deposited, and played upon chance, and, upon the result of the action of said machines, cigars and merchandise, then and there of
The case was submitted; to the district court upon an agreed statement of facts which are substantially as follows: That, at the time the complaint was filed, appellant was the owner of a certain bar and cigar stand in Salt Lake City; that he was at that time engaged in the retail liquor and cigar business, and in connection therewith “kept, maintained, used, and operated five machines, known as trade or card machines,” in the interior of which there was a contrivance consisting of five wheels or cylinders about one inch wide, all of which revolved upon independent axes; that upon each one of said wheels or cylinders are fastened eleven small playing cars, making fifty-five in all, being three cards in excess of a common deck of playing cards; that said wheels and cards are in a small box or cabinet of which only a certain space is open through which a certain number of the cards are visible when the wheels stop revolving; that, in case a nickel is dropped into a certain slot of said cabinet, all of the wheels or cylinders, with the cards thereon, are, by a concealed mechanism or device, set in motion, and each wheel revolves upon its own axis, so that, when all of the wheels stop, just five of the cards appear in a longitudinal row and are visible through the space aforesaid, and the five cards só visible represent or constitute what is called a “hand;” that any person who desires may drop a nickel in the slot and set the wheels in motion and the person dropping the nickel in the slot for each nickel deposited therein is entitled to receive one five-cent cigar of any kind kept on sale by appellant in his business; that if in revolving said wheels the cards are so arranged upon them that by chance they are stopped so as to exhibit in a single row the following cards, ace, king, queen, jack, and ten spot of one suit, it' is called a royal flush, and entitled the person depositing-
We have a statute (Comp. Laws 1907), known as subdivision 40 of section 206, which, so far as material here, provides that the authorities of cities of the class of Salt Lake City shall have the power to “suppress and prohibit gambling houses and gambling, lotteries, and all fraudulent devices and practices, and all kinds of gaming, playing at dice, cards, and other games of chance.” The ordinance in question is based upon the power conferred in the foregoing section. There is a further statute (Comp. Laws 1907, sec. 4261, as amended in 1911 [Laws 1911, p. 265]), which among other things, provides:
“Every person who deals, or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette,*409 lansquenet, ronge et noir, rondo, or any game played wiih cards, dice, or any other device, for money, checks, credit, or any other representative of value shall be deemed guilty of a felony. . . .” (Italics ours.) The remaining portion of the section is of no importance here. The validity thereof was under consideration by this court in the recent case of Bruce v. Sharp, 41 TJtah, 566, 127 P'ac. 348, where we held the portion we have quoted above valid, regardless of whether the remaining portion was subject to the objection urged against it in said case or not.
Appellant, however, insists that the ordinance in question is void, in so far, at least, as it undertakes to prevent him from using, or permitting the use of, the slot machines in question when used for the purposes and in the manner we have hereinbefore set forth. This contention is based upon the theory that under the general terms of section 4261, supra, the use of the slot machines in the manner and for the purposes stated is not prohibited by said section. As a corollary of the foregoing claim, it is insisted that the city authorities had no power to prohibit or punish any act as gambling which does not come within the terms of said section, and which is not prohibited thereby. Is this contention tenable ?
*412 “The element of chance is the soql of the transaction. The operator hopes by chance to get something for nothing. The dealer hopes chance will save him from giving something for nothing. Bach is pecuniarily interested adverse to the other in a result to he determined solely hy chance. To use the language of the street, ‘it is a gamble’ which will win, and we have no doubt the transaction is ‘gambling’ in the statutory sense of the word.”
To tbe same effect are tbe recent cases of City of Seattle v. McDonald, supra,; Loiseau v. State, 114 Ala. 34, 22 South. 138, 62 Am. St. Rep. 84; Territory v. Jones, 14 N. M. 579, 99 Pac. 338, 20 L. R. A. (N. S.) 239, 20 Ann. Cas. 128; Lytle v. State (Tex. Cr. App.), 100 S. W. 1160; Meyer v. State, 112 Ga. 20, 37 S. E. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17; In re Cullinan, 114 App. Div. 654, 99 N. Y. Supp. 1097. Upon tbe question that playing slot machines constitutes gambling, neither of the foregoing cáses is distinguishable from the case at bar.
In view of what has been said, we need not determine the question argued at the hearing, whether the use of the machines, as stated, also constitutes a lottery, and that they are therefore prohibited for that reason.
The judgment is affirmed. [Respondent to recover costs for printing its brief.