State v. Koo

Oklahoma, Appellant, STATE

Gary Anthony KOO and Salvatore

Jacene, Appellees.

No. O-81-75.

Court of Appeals Criminal Oklahoma.

June 1982.

Rehearing Denied July Huff, Atty., Frank 6th day September, 1979, E. Dist: W. Mu- Kay Atty., ret, Buffalo, Twenty-First First Asst. Dist. outcome of the New Eng- land, District, Norman, appellant. Washington professional Judicial and Dallas football be played on the 7th Boswell, Jr., Traw, E. M. William John day September, ... Norman, appellees. Copies CRF-80-319, in information CRF-80-322, CRF-80-325, CRF-80-326, OPINION in appear appendices CRF-80-333 form at BUSSEY, Judge: opinion.1 the end of this In each case a demurrer to the informa- аppealed The has under Rule State 6 of tion was filed and sustained the same Appeals Rules the Court of Criminal magistrate. magistrate The in found from order sustaining an case, Okla.Sess.Laws, each ch. § demurrers to the Information in the cases O.S.1981, 982, now subsec- § the State Oklahoma v. Ja Salvatore tions A-l and unconstitutionally A-2 were cene, CRF-80-319, CRF-80-300 vague and The magistrate indefinite. fur- Koo, Gary Oklahoma v. CRF- Okla.Sess.Laws, ther found that 1975 ch. CRF-80-325, CRF-80-326, 80-322, CRF- O.S.1981, 981, now subsection § § magistrate’s 80-333. The was af decision 4 which defines a “gambling place” to be by judge firmed the district court. All broad and six separate appeals. cases were filed as magistrate also found information to be However, upon application by the State all so “duplicitous as to be unclear and uncer- six cases were ap consоlidated under one tain offense allegedly committed.” peal, and, due to in similarity an ef At the request, pursuant State’s to a Rule fort to deal efficiently. with them more 6 appeal, the was brought matter before a In each information the defendants were judge. district court The district court charged with gam- the crime of commercial judge Affirming Magis- issued an “Order bling. Jacene in trate” in eaсh making case. In his decision case number CRF-80-300 states: O.S.1981, judge district found For violation Oklahoma Statutes 982A-2 the statute which § under 982(A-1) had charged regardless defendant been O.S.1981, fact 982A-1 had COMMERCIAL GAMBLING been specifically cited in the information. IN THE AND NAME BY THE AU- It was the judge’s district court decision THORITY OF THE STATE OF OKLA- that 21 was so broad its scope application in its ney, comes into Court and states was unconstitutional. above-named De- fendant on or about Octo- order to determine the nature of ber, 1979, Club, Tony J’s offense described in an S. Clas- information one sen, must to the Norman, charging part look its con State of (Okl. tent. Menifee v. Page, 423 P.2d 478 unlawfully, wilfully Cr.1967); Raybourn feloniously Sinor, receive from Robert (Okl.Cr.1959). the opinion Norman Court that the district court was correct in place, nine hundred good finding that offense described currency lawful of the United States body of each information stated an offense currency being received 982A-2, pursuant 21 O.S.Supp.1980, from the said Robert Sinor to a bet opposed to § 982A-1. between the parties based on Iowa, outcome 982A, Carolina provides Title 21 and Houston pertinent part Appendix 1. See A. Gambling

A. Commercial is: notice to what conduct is forbidden. explicit Secondly, standards necessary Operating 1. all prevent in order to arbitrary arrests and earnings of a gambling place: resting convictions solely on the unfet Receiving bets or of- forwarding police, tered discretion of the judges and or, receive, fers with intent juries. Papachristou Jacksonville, V. bets, bet, record or forward offers 92 U.S. S.Ct. 31 110 L.Ed.2d so; possessing [emphasis facilities to do (1972). ours] Nevertheless, defendants must takе part that in the of charging is clear each proof alleg- themselves burden of when information the of- commercial State, v. unconstitutionality. Hilliary “Receiving alleged. fense of .. . bets” supra. 982A-2. theories, In support vagueness their The issue which is wheth remains argue impossible defendants that it is er or not the commercial offense person be able to tell in advance bets is cоnstitutional. Before “receiving ‍​‌​‌‌​​​‌‌​‌​​​​‌​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌‌‌​​‌​​‌​‍what bets” consists. First it is specifically addressing purport each of argued spe- that the statute does not unconstitutionality, ed for it should reasons require cifically knowledge or intent that it be noted that statutes are consti presumed is unclear under which circumstances tutional and the their un alleging applies. opin- the statute It is this Court’s constitutionality proof. have the burden ion that the nature of this is offense State, v. Hilliary (Okl.Cr.1981); it contains within its terms aver- an (Okl.Cr. Williamson 463 P.2d 1004 knowledge. See, ment of v. Lisbon Further, 1969). reasonably possible, when Co., Sales Book 176 Ohio 200 N.E.2d con legitimate and within bounds of (1964). The be con- contention that struction, statutes should be so as construed stitutional this statute must Ex uphold parte knowledge, state intent or constitutionality. requirement Arnett, is (1950). guilty purpose withоut merit. Okl.Cr. 225 P.2d Second, argued it is that failure magistrate held and defendants ar- legislature to define the term “receive” gue 982A-2 is impossible to whom to makes it determine justification ruling for his However, prosecute. opinion it is the stated clearly that the term “receive” is it is impossible ... of com- by all. It was not intent understood what, understanding mon if any, to know prosecute unknow- the statute those who activity prohibited. is thereby criminal “receive” ingly or without intent argued The defendants statute is that the in the any vagueness do not find bets. We so vague that it does give not accused term “receive.” fair notice of the “nature and cause” of the Third, argued is that the “bets” is it term by accusations him as required sufficiently defined statuto- not because the Constitution, Oklahoma art. 20. The is ry of the word “bet” which definition argue defendants further statute is that the part 1 is found in unclear. so vague gives it excessive discretion bet as 1 defines a police, judges juries. Court recognizes, This requirement bargain “bet” is a in which 1. A specificity penal statutes. In Switzer v. that, agree dependent parties Tulsa, City (Okl.Cr.1979), 598 P.2d 247 chance, or in which one of we stated that: believe has valid reason to the transaction . . . There are essentially indepen- chance, two one dependent upon dent reasons for requirement speci- of value something win lose stands to penal First, ficity due does proc- agreement. statutes. in the A bet specified requires ess that citizens be afforded fair not include: [B]y the word by fide business transactions as defined Web-

a. bona the law of con- which are valid under ster, befalls, something meant to, including, but limited tracts the result of unknown or unconsidered for the purchase tracts sale forces; conditions; the issue of uncertain date of com- future securities event an upon; an not calculated unex- compensa- agreements modities occurrence; pected happening; acci- by happening tion for loss caused dent, fortuity, casualty. including, the chanсe but not limited also, Monroe, People v. 349 Ill. See to, indemnity guaranty contracts of (1932). N.E. A.L.R. The fact and life or insur- death accident and baseball are considered ance; or games of skill by players as exhibited any bingo game b. or a dependent does make them less with comparable chance characteristics upon chance per when considered from the participants conducted spective of a who makes “receives organization nonprofit authorized un- bets.” “What a man does know and pursuant der the laws of state to this 21, Statutes, him, find Oklahoma cannot out is chance as to and is Sections 995.18; 995.1 as recognized Dilling chance the law.” v. McLaughlin, ham 264 44 purses, prizes premiums c. offers of U.S. participants (1924). actual in 68 742 public Accordingly, S.Ct. L.Ed. follows, events, as semipublic we not find term do “bet” or term Rodeos, shows, expositions, animal lacking in specificity “chance” either events, fairs, athletic tournaments and clarity. commonly Both are understood other shows and contests where the words which are not unconstitutionally participants qualify monetary vague. prize or recognition. other sub- This It opinion therefore the excepts paragraph entry further O.S.1981, that Court 21 982A-2 which § , from the ap- definition of “a bet” as defines gambling commercial in as “re plied to public semi- enumerated ceiving bets” is not of itself unconstitution public events. ally only Not does give the statutes Part ambiguity, the defendants fair activity ‍​‌​‌‌​​​‌‌​‌​​​​‌​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌‌‌​​‌​​‌​‍prohibited, notice it also argue, legislature’s arises from failure guidelines contains sufficient for enforce argued define the word “chance.” It is ment. that games games football and baseball judge The district court in Order Af- skill his and not chance. While it is true firming Magistrate O.S.1981, the outcome of held that 21 certain activities are solely dependent upon skill and no scope include 982A-2 was broad in so its elements of would be an improper it in vague application its was uncon- it interpretation of thе statute to say Special emphasis placed stitutional. on was void as it applied to football base- Smith, (Okl.Cr.1975) Rowell v. P.2d ball participant because the exer- impossible and the courts belief that it was cised or a determining skill lack thereof in O.S.1981, 982A-2, reconcile with the outcome of game. Any a over result gambling other already statutes exist- which party to a bet does not havе control O.S.1981, ence as 21 991.2 §§ can be considered to be chance. “While Smith, Rowell supra, Court there there uncertainty, is chance.” with O.S.Supp. faced a conflict between 21 Machines, State v. Pinball 404 P.2d 923 O.S.1971, and 21 stat- (Alaska 1965). Supreme The United States ed: Court Clearing in Public Coyne, House v. attempt U.S. We are of the opinion 48 L.Ed. 1092 that to S.Ct. (1904), described as chance apply the statute harmonize [§ 1733] Appendix See B. penal games, it with other they baseball must show that be impossible code would stat- applied statute as to them is unconstitution- vague ute is in its scope so broad Whereas, al. gambling statutes application. its supra do mentioned not specify receiving This baseball further stated in Rowell v. violation, Smith, opinion we are of supra, crime with which were charged defеndants apparent It is readily from even most cannot considered irreconcilable under statute, cursory examination the new Smith, the rationale of supra. Rowell v. interpretation that a im- literal would Accordingly, charged the offense cannot plication, repeal many prior statutes fear, scope considered so broad in larceny, its cerning robbery by embez- zlement, iii application its etc. be unconstitutional Smith, pursuant supra. Rowell v. opinion is this Court’s supra, rationale used Rowell v. defendants, addition to at in. cannot be used reference to the com tacking unconstitu mercial offense of bets. vague, also it as tionally attack un A review of the other statutes which deal constitutionally As overbroad. stated in pro reveals that gambling, Tulsа, City (Okl. Profit v. hibitions originally had been couched in Cr.1978). terms of specific gambling games which penal Over-breadth is the doctrine have been prohibited. 21 §§ be may statute ordinance held uncon- seq. not, et of receiving The act has even stitutional when not if the until of 21 enactment 982 been proscribed infringes area of conduct upon of itself and a crime. There constitutionally protectеd freedoms. fore, the commercial gambling offense of receiving bets does not in manner a broad We cannot find that of 21 repeal prior concerning gambling. statutes 982, which gam- defines “commercial bling” “receiving infringe . .. bets” to

Furthermore, defendants’ arguments that upon any protected constitutionally free- entire commercial we find doms. do not the of- Therefore,7 confliсt previously ‍​‌​‌‌​​​‌‌​‌​​​​‌​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌‌‌​​‌​​‌​‍per- enacted laws receiving fense of bets to be unconstitution- taining will not be considered ally overbroad. Oklahoma, by this Court. Broadriek v.

413 U.S. (1973), the stated: erning principle ground be may constitutionally ations not before the Court. omitted]. Embedded heard to constitutional United States A 93 S.Ct. it may conceivably challenge clearly person the traditional rules others, be related adjudication to whom statute applied Supreme 37 L.Ed.2d 830 statute in other situ- principle be [Citations will not applied is the Court gov- sufficient. ants and in such manner as to enable a of common is the Finally, O.S.1971, 401. magistrate ruled and defend- (Okl.Cr.1979), A statement of the acts intended assert offense, in ordinary ^[******] In Holloway understanding is all we held that: informations concise required constituting know what language, 602 P.2d were in- rights personal constitutional an informa- sufficiency The test and may vicariously. asserted whether the was in fact tion is defendant U.S. at 610. a conviction misled and whether Therefore, expose it would defendant defendants assert under rights subsequently put constitutional possibility charged with a violation of for the same jeopardy the offense a second time regard bets with and to football offense. officer, followed, police a model to be we find at gambling place, While not twen- informations met the stan- ($20.00) above dollars ty good lawful cur- dards are therefore sufficient. rency America, United States currency being said from received foregoing, basis of the Order On the Bill said Rollins to a bet between Affirming and the Order based on to wit: be, Magistrate case issued in each should outcоme of the Texas/Baltimore baseball hereby the same are REVERSED Diego base- proceeding the Cincinnati/San REMANDED further opinion. ball said inconsistent with this of May, BRETT, J., P. concurs. Koo case num- CORNISH, J., concurs in results. ber CRF-80-325 states: For Violation of 21 Oklahoma Statutes APPENDIX A 982(A-1) COMMERCIAL GAMBLING The information against Jacene in case IN THE NAME AND THE BY AU- number CRF-80-319 states: THORITY OF THE OF OKLA- STATE For Violation of 21 Oklahoma Statutes HUFF, District Attor- 982(A-1) COMMERCIAL GAMBLING ney, comes into Court and states IN THE NAME AND BY THE AU- this Affidаvit that the above-named De- THORITY OF THE STATE OF OKLA- day May, fendant on or about the 23rd HOMA, KAY E. Cafe, Main, at Koo’s 319 E. Nor- ney, comes into states man, County, Cleveland State Oklaho- that the above-named De- ma, unlawfully, did wilfully and feloni- on or the 6th day fendant about of Octo- ously Rollins, receive Bill from a Norman ber, 1979, Classen, Norman, at 2404 S. police a gambling place, fifty good and lawful currency unlawfully, wilfully feloniously re- United Statеs of said Sinor, ceive from Robert a Norman currency being received from Bill officer, at a gambling place, four hundred place Rollins to parties a bet between the fifty ($450.00) good dollars and lawful chance, on to based wit: the outcome of currency United States of Ameri- Washington/Seattle game baseball ca, being currency said received from the played 1979, on the day May, 24th of said place Robert Sinor to a bet between against Koo in case num- ‍​‌​‌‌​​​‌‌​‌​​​​‌​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌‌‌​​‌​​‌​‍parties chance, based on to wit: ber CRF-80-326 states: outcome of the Virginia, West Kansas college U.C.L.A. to be For Violation of 21 Oklahoma Statutes played day October, 6th of 982(A-1) COMMERCIAL GAMBLING The against information Koo in num- case IN THE NAME AND THE BY AU- ber CRF-80-322 states: THORITY OF THE STATE OF OKLA-

For HOMA, Violation of 21 Oklahoma HUFF, Statutes KAY E. District Attor- 982(A-1) COMMERCIAL GAMBLING ney, comes upon into аnd states

IN THE this Affidavit NAME AND BY above-named De- THE AU- on day THORITY OF THE fendant or about the 15th of May, STATE OF OKLA- HUFF, Cafe, Main, District Attor- at Koo’s 319 E. Nor- ney, man, upon comes into Court and states did this Affidavit unlawfully, wilfully the above-named De- feloniously re- on or Rollins, fendant about the 14th day May, of ceive from Bill a Norman Cafe, Main, at Koo’s 319 E. Nor- ten gambling place, dollars man, Cleveland County, State ($10.00) good of Oklaho- currency and lawful ma, did unlawfully, wilfully and feloni- America, currency United States of said ously Rollins, receive being from Bill a Norman received from the said Bill Rollins for any person shall unlawful or parties a bet based between persons, corpora- or association of on outcome corporations, tion or bet or wager by New York/Detroit baseball and the books, means of any machines or game, Cаlifornia/Milwaukee baseball said devices, room, shed, to occupy any or ten- games to be day the 15th thereof, ement building, any part or or or May, any place upon to occupy any grounds information Koo in case num- books, apparatus, or paraphernalia ber CRF-80-333 states: for the purpose recording register- or For Violation of 21 Oklahoma Statutes wagеrs selling pools, bets or or or 982(A-1) COMMERCIAL GAMBLING or making books mutuals the result IN THE NAME AND BY THE AU- of any speed power trial or of endur- THORITY OF THE STATE OF OKLA- beasts, being ance of animals or or HOMA, KAY E. room, occupant any owner or lessee or ney, comes into Court and states tenement, tent, shed, building, booth or that the above-named De- .part knowingly or at any place thereof fendant on or about the 11th day May, permit ocсupied the same to be used or Cafe, at Koo’s Main, 319 E. Nor- man, any purposes, other such or therein to Cleveland County, State of Oklaho- ma, exhibit, keep, any or or employ device unlawfully, wilfully and feloni- ously receive from Rollins, Bill apparatus recording the purpose a Norman or police officer, at a gambling place, fifty wagers or registering or good and lawful currency books, making or selling pools or of such of the United States of said mutuals, or or become custodian currency being received from the said Bill gain, any or depository for hire reward of to place Rollins a bet between value, money, property thing or or bet based on chance, to wit: the outcome of wagered or wagered contrary or bet the Seattle/Phoenix basketball game; act, receive, or to Washignton/San Antonio basketball record, register, or purport forward game; and the Houston/Chicago baseball pretend to forward to or for race any said to be played on the state, any or course within without of May, thing or consideration of value money, APPENDIX B or purpose offered for 942 reads as follows: wagerеd upon speed endurance at plays any who bets or Any person beast, any occupy animal bet or prohibited games, or who shall place, building thereof whatsoever, for mon- play any games books, paraphernalia or papers, apparatus checks, rep- ey, property, credits or other pretend- for or purpose cards, dice or resentatives value recording or for ing to receive or any may adapted other device which forwarding pretend- or for or registering any game to or used in of chance playing attempting to man- any or forward element, or in which chance is a material whatever, money, any thing ner or misdemeanor, shall guilty value, wagered or or to sideration of bet punished conviction thereof shall be wagered any person, or to by be bet or by twenty-five a fine of less than dollars, any money, nor one dol- receive or offer to receive more than hundred lars, by imprisonment county or in the of value or to thing, or consideration jail a term one day, of not less than provisions contrary be bet to the by nor thirty days, more than or both act, any aid or or or to assist аbet at imprisonment. such fine and any any racetrack manner in or by forbidden this statute. and, the acts provides fol- or association any person lows: That value, or employ- who either as owner or ee, not, whether for hire or deals for vi- persons, corporation corporations engaged those shall be olating of this act shall be guilty of a felony, upon conviction fined not less than two hundred dollars thereof, dollars, punished nor more than five hundred one- shall be a fine of not paid fourth of which shall be to the in- dollars, less than five hundred nor more former, imprisoned and be not less than dollars, than two by impris- thousand thirty days ninety days. nor than more penitentiary onment in the state Although, referred to year term of not less than one nor more judge, years. than ten relies, supra, provides which

Every person opens, who or causes to conducts,

be opened, or who whether for not, poker,

hire or or carries on either

roulette, craps or any banking per- centage, any gambling ‍​‌​‌‌​​​‌‌​‌​​​​‌​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌‌‌​​‌​​‌​‍game played dice, cards or any money, device for

checks, credits, any representatives

Case Details

Case Name: State v. Koo

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 16, 1982

Citation: 647 P.2d 889

Docket Number: O-81-75

Court Abbreviation: Okla. Crim. App.