12 Wis. 434 | Wis. | 1860
By the Court,
Tlie defendant was indicted under sec. 4, chap. 117, Gen. Laws of 1858 (R. S., p. 970), for permitting games of cards to be played for gain upon Ms premises. There are several counts which allege that the defendant suffered games at cards “ to be played by means of cards, then and there used as a gaming device,” &c. Sec. 4 punishes any one who allows any game or games to be plajred for gain upon his premises, “by means of any gaming device of machine of any denomination whatever,” &c. The objection to the indictment is, that it does not aver that cards were a gaming device, but only that they were used as such. In support of this objection it was contended that the several sections of this chapter establish two grades of gambling; one that of gambling by means of some gaming device, the other that of gambling by means of something which is not a gaming device. And, of course, as a part of the argument, it was urged that the words, “ a gaming device,” as used in the statute, meant only a device designed exclusively for the purposes of gambling. If this argument is correct, then, although cards may be used for the purpose of gambling, yet not being designed exclusively for such use, they would not be “ a gaming device” within the meaning of the law, and consequentfy an averment that they were used as such would be insufficient in an indictment under sec. 4. But on a careful examination of the provisions of the act, we are of the opinion that it divides gambling into two classes, not, however, gambling by means of a gaming device, and gambling without such device, but into gambling by means of a gaming device designed entirely for purposes of gambling, and gambling by moans of any other device adapted to the playing of games, but not intended solely for gambling. The statute, therefore, makes not only two kinds of gambling, but two kinds of gaming devices, those designed entirely for gambling, and those not so designed, but which may be used therefor. This seems to us to result from a close inspection of the several sections. Sec. 1 punishes any person who shall “ set up or keep any table or gambling device.” The word gambling here necessarily includes the idea of playing for
It follows, therefore, that the indictment was good. And this seems to us to result necessarily from the position of the counsel for the defendant that the statute establishes two
We answer the questions certified to us by the circuit judge, in the affirmative, that the first two counts in the indictment were good, and the conviction under them legal.