39 Minn. 153 | Minn. | 1888
This appeal involves the construction of sections 294, 295, Pen. Code. As the Code has abolished all common-law offences except as defined and made punishable thereby, (section 2,) the indictment must stand or fall by the interpretation to be given, the sections named.
1. Chapter 9, tit. 10, Pen. Code, is substantially a transcript of corresponding sections in chapter 99, Gen. St. 1878, except that section 12 of the last chapter, expressly declaring gambling to be a misdemeanor, and fixing the penalty, is omitted. But we are of the opinion that section 12 was omitted because the prohibited acts must, under section 6, Pen. Code, be classed as misdemeanors, and the legislature intended to leave the punishment therefor to be inflicted under section 13. The prohibition makes the acts specified unlawful under the Criminal Code of this state, and, the offence not being expressly defined or made a felony, it must be intended to be-made a misdemeanor under sections 3, 4, and 6. There are many offences in the Code which are expressly “declared” to be misdemeanors, and where no penalty Í3 provided, and the punishment is left to be regulated under section 13; but it would be too narrow a construction to hold that the latter section is limited to cases in which the offence is in terms “declared” to be a misdemeanor, if the prohibited act must fairly be construed to be such under section 6.
2. The principal question involved in this case is the construction, to be placed upon the term “gambling devices,” used in section 294 and section 295, and this question is common to all the counts in the indictment. The first count charges that the defendants did, at the time and place named, “for gain and reward, gamble with gambling devices, to wit, boards and lists containing the names of horses which were to race on a given day, at a time and place then and there named.” The second count charges that the defendants, “for gain or reward, did unlawfully keep, maintain, and control divers gambling devices, designed to be used in gambling, to wit, boards and lists containing the names of horses which were to race on a given, day within the United States, at a time and place then and there
The first count is evidently based on section 294, and the second and third on section 295, Pen. Code. The statute enumerates cards, •dice, gaming tables, which are well-defined devices used in gambling, and then follow the words “or any other gambling devices whatever.” Gambling is defined to be “a risking of money or other property between two or more persons on a contest of chance of any kind, where -one must be the loser and the other the gainer.” A horse race may therefore be a game, and betting on a horse race is gambling, .and undoubtedly the parties charged in the indictment were gambling, and it might well be held that persons betting on such games would be liable to prosecution under section 296 of the Penal Code, .and that the house or place kept by defendants was a common nuisance, and the keepers might have been indicted, under the common law, for “keeping a common gaming-house.” But the offence here •charged is gambling with “gambling devices,” and “keeping gambling devices designed to be used in gambling.” The term “device” has the same meaning in both sections. Though the words “any other gambling devices whatever” are doubtless intended to include any kind of apparatus, contrivance, or instrument which may be used in games of chance, and upon the manipulation or operation of which the result of the game is determined, yet these terms, “gambling devices,” must be construed ejusclem generis with the particular devices which are described in the preceding portion of the same section, in fixing the general character of such devices referred :to in the statute. In re Lee Tong, 18 Fed. Rep. 253. A horse race -is not a gambling device, nor are descriptive lists of such races, or statements or announcements of the particulars thereof, from which those desiring to bet on the races may more conveniently obtain information in respect to the same; and we are unable to see that the
The cases of Com. v. Moody, 143 Mass. 177, (9 N. E. Rep. 511,) and People v. Weithoff, 51 Mich. 203, (16 N. W. Rep. 442,) are cited in support of this indictment, but they arose under entirely different statutes, and only serve to illustrate more fully the defects and omissions in the statutes of this state as respects the charges in question-here. In Com. v. Moody the prosecution proceeded under a statute of Massachusetts, (Acts 1885, c. 342,) which provides a penalty for buying or selling pools, or keeping a place for such purposes. And in People v. Weithoff the indictment was under a statute prohibiting gaming-rooms, and it was held that keeping a room where pools are - sold was within the statute.
We are of the opinion therefore that, under the staWtes of this state, the indictment cannot be sustained. It is accordingly directed-to be quashed, and the defendants discharged.