State v. Leighton

23 N.H. 167 | Superior Court of New Hampshire | 1851

Gilchrist, C. J.

In the case of The People v. Sargent, 8 Cowen, 139, the indictment was for a nuisance at common law, in keeping two billiard-tables. The proof was, that on one oceasion there had been playing for money, but that it was usual to play for the rub, that is to say, for the use of the tables, which was one shilling. It is said per curiam, that “ paying for the table by the rub is not gaming, within the meaning of the law, which makes the house a nuisance. Here is hardly a shadow of gain by either party. Illegal gaming implies gain and loss between the parties, by betting, such as would excite a spirit 'of cupidity. Experience having shown that this leads to idleness and waste, riot and intemperance, the common law has wisely pronounced it pernicious, and condemned the gambling-house as a common nuisance.” Stress is also laid upon the fact, that no disorderly conduct was proved against the defendant; that he allowed no noises, which disturbed the neighborhood, and no betting, but discountenanced the most trifling wagers; and it is said that the only fact, upon which the indictment can rest, is the loser of the rub paying for the use of the table, and this fact, alone was held not to make the respondent liable for a nuisance at common law.

But the present indictment is not for a nuisance at common lawj and the case of The People v. Sargent is not The indictment is for a violation of the third section of ch. 220, Rev. Stat., which enacts that if any person shall keep any gaming-house or place, and shall permit any person to play at billiards, among other things, “ for money, hire, gain or reward,” he shall be punished, &c.

The defendants, in this case, made a profit from the use of the billiard-tables. For the “ hire ” of them, they were paid a shilling a game. The persons who resorted there played for the hire. In substance they played for a shilling a game. The loser paid and the winner received the sum. By an understanding, among the players, the money won was to be applied towards defraying the expenses of the tables, but still it was money won at play, and upon the chance of the play, and not on any collateral matter. In the case of Pope v. St. Leger, Salkeld, 344, a question arose, among players at backgammon, whether one of them who had stirred one of his men was bound to move it, on this, a wager of ¿£100.00 was laid, and the question was whether this was within the statute against gaming ? It was held that this wager was not prohibited by the statute, for it was not on the chance of the play, but on the right of the play, which is a collateral matter. In the present ease the money was to be applied to a purpose collateral to that which is the ordinary purpose of playing, when money depends on the event of the play; but still the money depended on the chance of the play. And under the St., 9 Anne, it is the playing for money which makes games unlawful. Sigel v. Jebb, 3 Stark. N. P. C. 1, per Abbott, C. J.

We think the playing was in substance a gaming for money, and are therefore of opinion that the instructions of the court below were correct.

Judgment on the Verdict.