69 W. Va. 263 | W. Va. | 1911
Wiley Baker and Dick Rader were indicted, tried and convicted, and adjudged by the circuit court of Cabell county to pay a line of $50.00 each, and the costs of their prosecution, for ‘keeping a common gaming-house; and they have brought the case here by writ of error.
Is the keeping of a common gaming-house a violation of the law of this state? We think it is. It was certainly an offence at the •common law. “Common gaming-houses are a public nuisance at common law, being detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness and avaricious ways of gaining property persons whose time might otherwise be employed for the good of the community/’ 2 Russell’s Law of Crimes (7th Eng. ed.) 1897; 1 Bishop’s New Crim. Law, section 504. In section 1135, Bishop says: “A common gaming-house is a species of disorderly house, the disorder consisting of its allurements tending to evil.” Its unlawfulness does not depend upon the unlawfulness of the games which may be therein played; the keeping of a common gaming-house is forbidden because it is a public nuisance tending to evil consequences. All the text writers say that it is an indictable offence at the common law. Joyce’s Law of Nuisance, section 395; 1 Wood on Nuisance, sec. 45; Bacon’s Abridgement, Vol. 7, page 223; 14 A. & E. E. L., 666; 20 Cyc. 893; Woods v. Cottrell, 55 W. Va. 491; State v. Ehrlick, 65 W. Va. 700; Commonwealth v. Warren, (Mass.) 37 N. E. 172; Thrower v. Slate, 117 Ga. 753.
The common law of England was made a part of the law of Yirginia; and later, the law of this State. In May, 1776, Yir-
The demurrer to the indictment was properly overruled; the offence of keeping a common gaming-house is sufficiently alleged. The fact that the indictment alleges that the games which were played in the house kept by defendants were unlawful games is immaterial; such allegation may be treated as surplusage. It is not necessary that the games which were played should have been unlawful in order to constitute the offence with which defendants are charged.'
The state produced a number of witnesses who testified-that
It apjiears that the gambling room was over Kan's barber shop-in the City of Huntington, and had to be reached by way of an alley ; a stairway led from the alley up to a door opening into a hall or ante-room; and in order to obtain admission the visitor had to knock on this outer door, and if the guard, or keeper of the -door, ivas satisfied that he was a gambler, he was then admitted; from this hall, or ante-room, another door led into another and still more private room where the gambling was carried on; there was a hole in the door leading into this room,, through which the keeper inside could look out in order to determine whether the visitor was a proper person to be admitted; if he was known to the gambling fraternity as a gambler, he was admitted, if not too drunk. Only those who wished to gamble were admitted. The room was kept closed, and the gambling could not be seen except by those in the room. Some of the witnesses were advised of the location of this gambling room by persons on the street who knew of its location, and who would tell them when a game was going on. It appears that this room was only kept and used for the purpose of gambling. It does not appear that the room was used for any other purpose than as a gambling place; neither does it appear that the defendants kept this gaming-house for gain or lucre. It is testified to by at^ least one 'witness, who says he used to run the place himself, that the defendants kept this gaming-house in the year 1909 prior to October. The indictment was found on the 28th of October, 1909. Defendants offered no testimony, and there is no conflict in the evidence. Defendants rested upon their motion to strike out the state’s evidence; this motion was overruled by the court; and the case allowed to go to the jury, and defendants excepted.
The fact that it'is not proven that defendants kept the room for lucre is not material. True, some authorities hold that
That the game was not carried on in view of the outside public, or that the public was not disturbed by noise from within, does not affect the case; these are not necessary elements of the offence. 14 A. & E. E. L. 697, and cases cited in notes 3 and 4.
It is none the less a common gaming-house because only those who desired to gamble were admitted within its walls. Says Hawkins, J., in Jenks v. Turpin, 13 L. R., Q. B. D., 515: “To no gambling house is the public at large invited to go without restriction of some sort or other. The keeper of such a house has always the right to admit or refuse admission to anyone he pleases, or to make such rules as he may think fit for the regulation of such.admission.” Again on the same page, the learned judge further says: “It is true that no annoying interference in the public streét can be pointed to, so that in that sense a public nuisance can be said to have been created; but that is not necessary.” Citing Reg. v. Rice et al., 2 L. R., 1 C. C. R. 21, which we do not find in the library. Commonwealth v. Blankenship, 165 Mass. 40, 42 N. E. 115; Commonwealth v. Warren, 161 Mass. 281, 37 N. E. 172; 14 A. & E. E. L., 679; 20 Cyc. 893.
Counsel for defendants cite State v. Maynard, 66 W. Va. 552, as authority for the proposition that, in order to constitute the offence of keeping a common gaming-house, it must be shown that it was carried on in a public place.- That case was an indictment under section 4 of chapter 151, Code 1906, for playing cards in a public place, and the proof showed that the playing was carried on in a secluded place. It was quite a different case from the present one. There the player was indicted for playing cards at a public place, a statutory offence; here the keepers are indicted for keeping a common gaming-house, a common law offence, and it matters not whether the gambling
We find no error in the judgment of the court below and it will be affirmed.
Affirmed.