19 Mont. 206 | Mont. | 1897
The record does not show why the district court sustained the.general demurrer. Possibly it was because the information first charges the defendants with keeping the room, and in the latter part thereof sets forth that they kept, maintained, and carried on the game referred to in the room, knowing that their employer had not secured a license for keeping and maintaining the house or room where the game was dealt or played for money. There may be some ambiguity of expression in the information, but the facts pleaded are that the. defendants kept and maintained the house where ‘ ‘fan tan’ ’ was played, and kept and maintained and carried on the game in the house, doing all such acts as the employes of John Doe Williams, whom they well knew had not secured a license for keeping and maintaining a gambling house, as required by law. But mere uncertainty or ambiguity of expression, where the charge is as plainly averred as in this case, will not warrant a court holding that the facts stated do not constitute a public offense. The essence of the offense charged under section 10 of an act concerning licenses (page 75, Laws 1887, 15th Ex. Sess.), is the keeping of the place where the
It is admitted by the learned attorney general that if the ruling of the district court was made because the game of ‘ ‘fan tan’ ’ is prohibited by the provisions of the ‘ ‘ Hunt Gambling Law of 1889,” the demurrer to the information was well taken, inasmuch as no license could be obtained for carrying on a game prohibited by that law. We find, however, that in the list of games particularly prohibited by the provisions of section 1 of the law of 1889 called the “ Hunt Law, ” there is no specific mention of “ fan tan;” nor is it charged in the information herein that the game of ‘ ‘ fan tan ’ ’ is really one of the games prohibited by that law, but called by the different name of “ fan tan,” or that it is even similar to one of such prohibited games, or that it is a fraudulent game, or that it in any way violates the provisions of the law in force. On the contrary, the information is drawn upon the assumption that “fan tan ” is a.game which may be played after procuring a license. It may be that the game of ‘ ‘ fan tan ’ ’ is known by persons familiar with gambling games, and it may be that it is one of the games fairly within the prohibited games enumerated in the Hunt law; but, if all this is true, w;e certainly do not knew it, and, without evidence of what it really is, we cannot be expected to judicially know that it is a prohibited game. True, there is a lucid explanation of the game of “fan tan ” by Judge Deady in the case of In re Lee Tong, 9 Sawy. 333, 18 Fed. 253; but, in our opinion, the proper way to ascertain the facts concerning the methods of playing the game, and the object thereof, is on the trial, where witnesses may testify to such facts. Thus alone can it be shown whether it is a lawful gambling game or a prohibited one. Whether or not the game conducted or carried on was the
The demurrer should have been overruled. The case is therefore remanded, with directions to the lower court to set aside the order and judgment sustaining the demurrer.
Reversed.