Thеre is little dispute about the facts in this case. Practically every fact alleged in the indictment seems to have been proven by compеtent evidence leaving little to be considered here, except whether the facts, alleged and proved, constitute the crime of gambling.
In the month of July, 1926, the defendants rented a storeroom space abutting the street called Broadway, which is the main thoroughfare in the City of Seasidе, and opened up a game called beano, keno or tango. ■ The entire front of the place was taken out so that the game, which the defendants were con *548 ducting, could be easily seen by tbe passerby. In tbe center of the room or storeroom space, which they wеre occupying, was a large square counter standing about four feet high and six feet on each side used for the purpose of keeping the contestants in said game at an equal distance from the box which was placed in the center of the square formed by this counter. There was placed in the bottom of the box in this square a number of spaces, numbered from one to seventy-five inclusive, which were used for the purpose of pocketing baseballs thrown into said box by contestants in the game. There was a large rack over this box which was used by the defendants to display various prizes for which the contestants were to play. The game was usually started after about ten or more persons had declared their intеntion to play said game, and each person upon paying the sum of ten cents to the defendants for the privilege or right to enter in said gamе would receive from the defendants a card bearing numbers of five lines each with five numbers in each line and also a few beans which were used аs markers. After all persons, who were to engage in said game, were supplied with the necessary cards, the game would commence in the fоllowing manner: Player number one would be given a baseball which he would throw into the box containing the numbered spaces, and the number into which the baseball fell would be called by the defendants; and any person, engaging in said game, whose card bore that number would place a bean on his cаrd over that number and then player number two would be given a ball to throw in a like manner, which was also called and marked in the same manner, and so оn until one player would have his card filled with beans over five numbers on his card, either *549 diagonally, horizontally or perpendicularly. Thereupon the player so filling his card would call beano, heno or tango; then the defendants would give to the lucky player the prize for which he was playing, whiсh consisted principally of one of a number of various articles, such as boxes of candy, electric percolator, electric toaster and various other articles. The game was conducted by the 'defendants for about a month as herein stated, when the sheriff of Clatsoр County ordered the place closed, because he construed it to be a gambling game. The defendants remained closed until about the 20th оf August, 1926, at which time they again commenced to operate the same game with a slight change in the manner of operating the box containing thе numbered spaces. This box was on a runway and was pushed back and forth from time to time as the players threw the balls toward the box, so as to make the box equidistant from each player at the time he threw the balls, and when ordered by the sheriff to close again, on the ground that it was a gambling game, they contended that the same was not a gambling game. Upon their refusal to close, they were placed under arrest and the present indictment followed.
The first objection is that the indictment. does not state facts sufficient to constitute a cause of action in that it does not show thаt the game was played for any representative of value as required by the statute; but, while this allegation is rather awkwardly stated, we think it is sufficient in that it stаtes that the person winning would receive from the proprietors of the game “a box of candy and-or electric percolator and-or various other articles of representative value.” In the absence of a demurrer we think that the allegation is sufficient.
*550 It is contended that this gаme depended npon the skill of a player rather than npon any element of chance, and that the articles given to the successful player were merely prizes. It would be difficult to see for what reason a game could be conducted profitably, if prizes of the value of thеse, as shown by the testimony to have been, were merely given as a reward of skill. It was under every essential element as much a game of chance as faro, poker or any other game played with cards or any gambling device. In all card games there is more or less an element оf skill. Take, for instance, the great American game of poker; we have no doubt, if a couple of gamblers sat down to play this game against a couple of ministers, who presumably do not indulge in it, that the ministers would soon be destitute of “chips” and the gamblers’ pile augment accordingly. It is true thеre is an element of chance in poker, and a very large element at that, and there is an element of chance in far-o or any other game played with cards, but in any of these there is also some element of skill. So, it appears in this case, where several persons wеre playing, if a ball thrown by one person happened to fall into a square of another player, it will counT for such other player to the same extent as though he had himself thrown it. While it is not a very thrilling form of a game of chance, we think it is undoubtedly a gambling game and a game calculated to stimulate in the minds of young people, especially, a desire to take chances in the hope of obtaining an article of cоnsiderable value by risking a very small sum of money. Taking the testimony of the defendants themselves we think the fact, that it was a gambling device within the meaning of the lаw, is clearly shown. This being the case, the instructions *551 of the court objected to become of minor importance. Defendants, on the stand, admit every fact which constitutes gambling, and, while the gravity of their offense was not great and the penalty inflicted seems severe, we are nevertheless constrained to hold that the testimony sufficiently indicates that «they were carrying on a gambling game contrary to the technical provisions of thе law.
Another objection was to the qualifications of a juror, who said he had formed an opinion from reading the newspapers, although he knew nothing personally about it, but succeeded in satisfying the court that he could lay aside his newspaper opinion and try the case fairly upon the facts and the law as given by the court. We think he comes within the rule of the statute, and of the very many decisions of this court, and that there was no errоr in permitting him to sit upon the jury. In consideration of the fact that defendants’ own testimony brought them within the purview of the statute, it is unnecessary to consider the objections to the instruction of the court, and the judgment is affirmed.
Affirmed.