1 Kan. 474 | Kan. | 1863
The grand jury for the county of Nemaha at the October term of the district court for that county in 1862, found a bill of indictment against Lewis Hardin, the appellee, in which they charge that said Hardin “ with force and arms at Seneca, in said county of Nemaha, on the 10th day of April, A. D. 1862, did unlawfully suffer and permit a gaming device, to wit: a pack of cards, to be used for purposes of gambling and gaming in a house called the ‘ Union Saloon,’ kept and owned by him in the town of Seneca, by divers persons and for divers sums of money to the jurors aforesaid as yot unknown,” contra forviam, kc.
At the April term of said court, 1863, said Iiardin, by his counsel, moved the court to quash the indictment, which motion, after argument of counsel, was sustained by the court and the appellee discharged from custody. From this ordo? of the court, in quashing the indictment, the state appeals.
The indictment appears to have been found under section two hundred and thirty-two of the “ act regulating crimes and punishments,” (Comp. Laws, p. 333,) the language of which is as follows, viz.:
“ Every person who shall permit any gaming table, bank or device, prohibited by the two hundred and thirtieth section of this act, to be set up or used for the purpose of gaming, in any house, building, kc., to him belonging, or by him occupied, shall, on conviction, be adjudged guilty of a misdemeanor,” kc.
Section two hundred and thirty, referred to, reads as follows:
“Every person who shall set up or keep any table or gambling device, commonly called ABC faro bank, E 0 roulette, equality, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property,” &c.
The only question presented for the consideration of this court is, whether “ a pack of cards ” is a gambling device,
It is to be remarked, in the first place, that the several gambling devices, specifically enumerated in this section A B C faro, E 0. roulette, &c., are all of them devices invented, devised and designed for the purpose of gambling, and for no other purpose.
They are the tools, implements and machinery of professional gamblers, and are, in the very language of the statute, adapted, devised and designed for the purpose named, while a “pack of cards,” though, without doubt, frequently used for the purpose of gambling, is also, and probably much more frequently, used for the purpose of mere amusement, like drafts, chequers, chess, billiards, nine-pins and dominoes. It will hardly be claimed, we think, that an indictment, framed under this section, for permitting a gambling device, to wit: a “ chequer-board,” or a “ chess-board,” could have been sustained, because those implements, although manifestly in some sense “adapted” to the forbidden purpose, are not within the meaning of the law, either devised or designed for that purpose. Their more obvious and common use is for purposes of innocent amusement; and though they may, perhaps, very frequently be used for purposes of gambling, they could not be called “ gambling devices ” within the meaning of this act, without doing violence to its obvious purport and intent. If in a similar act against the crime of counterfeiting the coin of the United States, it should be forbidden to keep or permit to be used any tools or implements adapted, devised and designed for counterfeiting, and an indictment under such act should charge the possession of dies or moulds for counterfeiting the gold eagles and half eagles, or the silver dollars, halves and quarters of the coin of the United States, it might be good, because such moulds or dies could be used only for such unlawful purpose; but if the possession of crucibles,
Gambling is sometimes carried on with the aid of very simple machinery; as, for instance, by means of two small sticks or twigs cut of different lengths and called “ cuts,” or “ lots,” and perhaps as frequently as by any other means with a coin or piece of money, the gamblers betting upon the chance of the coin being “ odd ” or “ even,” or upon its falling, upon being thrown into the air, with the head or the reverse side uppermost.
Yet it would be hard to presume that the keeping of sticks of different lengths, or of coin, in a house or shop would render the owner or occupant of such house or shop liable to indictment under this section of the act in question.
It must, we think, be obvious that it was the intention of the legislature in using the general words, after enumerating specifically certain of the most notorious and obnoxious of the inqdements used for the forbidden purpose, to include others of similar character, and, like them, designed solely for gambling purposes.
The two twigs and the cpin, in the case supposed, are, in a-certain sense, adapted to the gambler’s purpose, else they would not be used for it; but they wore neither “devised” nor “designed,” and if the legislature intends to forbid all gambling and betting upon games of chance, it is plain that more certain, definite and comprehensive language should be made use of to evidence such intent.
The judgment of the court below is affirmed, with costs to the appellee.
