Wade v. United States, 33 App. D.C. 29

Wade v. United States

33 App. D.C. 29 | D.C. Cir. | 1909

Hr. Chief Justice Shepabd

delivered the opinion of the Court:

Section 865 of the Code, which defines the offense, reads as follows:

“Gaming. — Whoever shall, in the District, set up or keep any gaming table, or any house, vessel, or place, on land or water, for the purpose of gaming, or gambling device commonly called ABC, faro bank, E O, roulette, equality, keno, thimbles, or little joker, or any kind of gaming table or gambling device adapted, devised, and designed for the purpose of playing any game of chance for money or property, or shall induce, entice, and permit any person to bet or play at or upon any such *32gaming table or gambling device, or on the side of or against the keeper thereof, shall he punished by imprisonment for a term of not more than five years.” [31 Stat. at L. 1331, chap. 854.]

Section 868, which relates the construction of sec. 865 and others reads as follows:

“What is Gaming Table. — All games, devices, or contrivances at which money or any other thing shall be bet or wagered shall be deemed a gaming table within the meaning of these sections; and the courts shall construe the preceding sections liberally, so as to prevent the mischief intended to he guarded against.”

Two offenses are created by sec. 865. One is the setting up or keeping of a gaming table or device; the other is the keeping of a house, vessel, or place for the purpose of gaming.

The contention on behalf of the appellant is that transactions of the character charged do not constitute gaming within the letter of the Code, and cannot be converted into gaming because, in the opinion of the court, they may come within its reason and mischief. It is true, as a general principle, that criminal statutes which specifically enumerate acts, or places in which they shall be committed, and make them punishable as offenses, cannot be made to embrace other acts or places merely because they may be said to be within the reason and policy of the law, for the reason that they are of equal atrocity, and of a kindred character. United States v. Wiltberger, 5 Wheat. 76, 93, 5 L. ed. 37, 42. That case, which is relied on by the appellant in support of his contention, differs widely from this in respect of the question for décision. In declaring the principle above stated, it also affirms the familiar principle, that the intention of the lawmaker must govern in the construction of penal as well as other statutes; and that while penal statutes are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. See Miller v. United States, 6 App. D. C. 6, 12. In that case the indictment was for keeping a gaming table and a place for the purpose of gaming. The specific act charged was what is called “book making” on races; that is, taking bets on the result of races about to be run. “Book making” is not specifically *33named in the statute. The contention of the appellant was the same as in this case. Chief Justice Alvey, who delivered the opinion of the court, affirming the conviction, said: “The definition of a gaming table under the statute does not involve the ordinary mechanical definition of a table, but depends for its statutory meaning upon the means or contrivances adopted for playing the game. If any doubt could arise upon the construction of the terms of the first section of the act of 1883 [which is now sec. 865, Code], that doubt would seem to be entirely and completely removed by the very explicit terms of the fourth section of the act [now sec. 868], which was inserted ex industria for the manifest purpose of repelling ingenious attempts to evade the real scope and policy of the act by subtle and refined distinctions and definitions. * * * This statute of 1883 was not aimed exclusively at any particular game or species of device for gaming, but was intended, as its title and its broad, comprehensive provisions declare, more effectually to suppress gaming in this District. The reason and policy of the law, as well as its comprehensive language, apply as well to all games and devices then existing, as to all that might he subsequently devised and practised. That being the object to be accomplished, what could be more grossly obnoxious to the provisions of the statute, or more demoralizing to the community, than the existence of places for the making and selling of books and pools upon horse races, baseball games, foot races, dog fights, cock fights, and all other conceivable contests upon which money may be bet or wagered. The great evil and vice of the thing is not in the horse race, the foot race, or the baseball game, but in the seductive allurements held out to people, young and old, to frequent the gaming table or the gambling device, and to indulge in excessive betting, and thereby become the victims of the wily and scheming professional gambler. Whether the game or contest upon which the wager is made be a horse race, foot race, hasehall game, or what else, it is quite immaterial, if the thing or contest upon which the bet or wager is made be a game of chance.”

With the end in view to prohibit, all gaming, the legislature *34found it impracticable to enumerate each and every kind then practised and much less so to anticipate tbe ingenuity of tbe gambler in devising new schemes for gaming when driven from old and well known ones. For this reason, evidently, sec. 868 declared “all games, devices, or contrivances at which money or any other thing shall be bet or wagered shall be deemed a gaming table within the meaning of these sections;” and then further, that, “the courts shall construe the preceding sections liberally, so as to prevent the mischief intended to be guarded against.” [31 Stat. at L. 1331, chap. 854.]

If “book making” on the result of races, which, when the statute was enacted, was as well known a form of taking bets and wagers as were “bucket shop” transactions, is a contrivance for gaming, then there is no reason why the latter should be excepted from the operation of the statute intended to prevent gaming generally.

However, we are not required, .by the demands of the present case to determine whether one conducting a “bucket shop” sets up or keeps a gaming table, within the definition of the statute. This is not the offense at which the conviction arises. Assuming, for the purpose of the argument only, that the ticker and blackboard as used do not constitute a gaming table, yet, if the transactions of the bucket shop constitute gaming, one who keeps a place where such transactions are carried on is punishable by the terms of the statute. The scheme is nothing less than the receipt and making of bets on an uncertain event; namely, the probable rise or fall of the market prices of the things pretended to be bought or sold. Betting and wagering of this kind constitutes gaming in the ordinary sense of the word, notwithstanding it may be carried on under the guise of trade contracts. The law looks to the substance, and not the form, in determining the true character of such transactions. The alleged contracts made in the conduct of such transactions have uniformly been denied obligation in civil actions, on the ground that they are not contracts in fact, but wagering and gambling schemes, and therefore illegal and void as against public policy. Irwin v. Williar, 110 U. S. 499, 511, 28 L. ed. *35225, 230, 4 Sup. Ct. Rep. 160; Embrey v. Jemison, 131 U. S. 336, 345, 33 L. ed. 172, 176, 9 Sup. Ct. Rep. 776; Pearce v. Rice, 142 U. S. 28, 40, 35 L. ed. 925, 930, 12 Sup. Ct. Rep. 130; Clews v. Jamieson, 182 U. S. 461, 489, 45 L. ed. 1183, 1196, 21 Sup. Ct. Rep. 845. Iu the case first cited it was said: “It makes no difference that a bet or wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade.”

Entertaining no doubt that the transactions of the appellant, as charged in the indictment, constitute gaming, it follows that, by keeping a place where such gaming was conducted, the defendant brought himself within the letter of the statute. The court did not err in denying the motion in arrest of judgment. The judgment will, therefore, be affirmed with costs.

• Affirmed.