| Mo. | Apr 15, 1889
— The charge in the indictment in this case is, that the defendant “did unlawfully and feloniously set up and keep a certain table and gambling device, to-wit: A certain table and chips or checks commonly called poker chips, and certain cards commonly called playing cards, all the same being gambling devices adapted, devised and designed for the purpose of playing a certain game of chance commonly called poker for money and property, and did then and there unlawfully and feloniously entice, induce and permit divers persons whose names are unknown to play at and upon said table and gambling device.” On this indictment, he was tried, convicted and sentenced to imprisonment in the county jail for six months under the provisions of Revised Statutes, 1879, section 1547, as amended by the act approved March 9, 1881, (Acts, 1881, p. 112,) which reads as follows: “Every person who shall set up or keep any table or gambling device commonly called A. B. 0., faro bank, E. O., roulette,
The evidence tended to show that appellant was the proprietor of a saloon in Kansas City; that he furnished to persons who came to his saloon cards and chips or checks ; that persons played in his saloon with the cards and chips, upon tables, such games as seven-up, euchre and poker for drinks and money; that the tables used were the ordinary tables usually kept in saloons upon which to place lunches and wine and beer ■> glasses filled with wine and beer to drink, by persons who desired to sit while drinking in appellant’s saloon; that the games were played in the same room where his bar stood and not in another room ; that appellant did not participate in such games nor play with nor bet against any of the players; that the players bet their money against each other and not on the side of or against appellant, who took no part in the games, either directly or indirectly : that the cards and chips used were handed out from behind the bar only to such persons as requested them ; that after the cards and chips were thus given out, appellant had nothing whatever, to do with them till they were returned to him; that appellant did not have the care, use or management of ‘ the cards or chips, or of the games played, and had nothing to do with the cards or chips further than to
It will not be necessary to notice the instructions in detail. The court in substance instructed the jury that an ordinary pack of playing cards and poker chips is a gambling device within the meaning of Revised Statutes, section 1547, supra, provided such cards and chips are used for the purpose of playing any game of chance for money or property. Whether this construction of the law is correct is the controlling question in the case. The qualification contained in the proviso cannot have the effect of bringing the cards and chips mentioned within the meaning of said section, for while the device therein prohibited must be adapted, devised and designed for playing a game of chance for money or property, the offense of him, who sets up or keeps the prohibited device of this section, is the same whether he permits others to bet money or property or simply to play at a game played by means of such device for amusement only. So the section reads and so it was held to mean in State v. Fulton, 19 Mo. 680" court="Mo." date_filed="1854-03-15" href="https://app.midpage.ai/document/state-v-fulton-7999371?utm_source=webapp" opinion_id="7999371">19 Mo. 680. This section of the statute is levelled at certain gambling devices ; section 1549, at one who permits such devices, or any gambling device to be set up or used for the purpose of gambling on his premises, and section 1548, at any one who gambles at or by means of any gambling device.
The prohibitions of section 1547 do not apply to games but to devices, and is limited to devices, adapted,
In prosecutions under the sections of the statute in previous revisions corresponding with 1548 and 1549, it has been held in several cases, that playing cards are a gambling device within the meaning of such sections. State v. Purdom, 3 Mo. 115; State v. Ellis, 4 Mo. 474; Eubanks v. State, 5 Mo. 450" court="Mo." date_filed="1838-09-15" href="https://app.midpage.ai/document/eubanks-v-state-6610008?utm_source=webapp" opinion_id="6610008">5 Mo. 450 ; State v. Bates, 10 Mo. 166" court="Mo." date_filed="1846-07-15" href="https://app.midpage.ai/document/donohoe-v-rooker-6611800?utm_source=webapp" opinion_id="6611800">10 Mo. 166 ; State v. Herryford, 19 Mo. 377" court="Mo." date_filed="1854-01-15" href="https://app.midpage.ai/document/state-v-herryford-7999277?utm_source=webapp" opinion_id="7999277">19 Mo. 377; State v. Skaggs, 33 Mo. 92" court="Mo." date_filed="1862-10-15" href="https://app.midpage.ai/document/state-v-scaggs-8001235?utm_source=webapp" opinion_id="8001235">33 Mo. 92. But we have failed to find a case prosecuted under the law contained in section 1547, which has been on the statute book in terms substantially the same as in the present revision, since 1825, in which it has been held that such cards were a gambling device within the meaning of that section, and it having never been so expressly ruled, we do not feel constrained, in this case, in which we are called upon to pass upon this question directly, to follow conclusions that might be drawn from dicta in some of those cases in which this section was only indirectly considered, unless an independent examination of the statute will warrant it.
Another rule of construction is “that every word and clause should, if possible, have assigned to it a meaning, leaving no useless words.” The words “or on the side or against the keeper thereof ” in this section are rendered useless when it is attempted to be applied to cards used in playing a game of poker, or any other ordinary game of cards. So if every kind of gambling device was intended to be included in the class of devices mentioned in this section, what is the necessity in section 1548, after providing a penalty for any one who shall bet upon any gambling table, bank or device prohibited by section 1547, of adding the words “ or at or upon any other gambling device % ” Evidently they were used
The gambling devices enumerated in this section are the same as those enumerated in the original act of 1825, except “keno” which was added to the list in 1865, and the keepers of them have always been made obnoxious to severe penalties. In the original act, they were liable to .punishment not only by fine and imprisonment but by stripes and the pillory, and by the last amendment the offense is made a felony. The severity of' the penalty, in itself, to some extent indicates the character of the devices aimed at, at least serves as a warning not to extend by construction the operation of the act beyond the requirements of its terms, while the serious consequences that might result from following the construction contended for by the state to its logical sequence add force to the warning. That ordinary playing cards were not within the meaning of the lawmaker in.section 1547, as it appears in the original law
On the evidence in this case, the defendant should have been indicted and tried under section 1549, for an offense under which he could have been legally convicted and punished. His conviction, under section 1547, was not authorized by law, and for the errors which lead to it, the judgment is reversed and the defendant discharged.