State v. Prevo

• Decision Date: 14 March 1961
• Docket Number: No. 4190,4190
• Citation: 361 P.2d 1044,44 Haw. 665
• Parties: , 44 Haw. 686 STATE of Hawaii v. Annie Lee PREVO.
• Court: Hawaii Supreme Court

Page 1044

361 P.2d 1044

44 Haw. 665, 44 Haw. 686

STATE of Hawaii v. Annie Lee PREVO.

No. 4190.

Supreme Court of Hawai'i.

March 14, 1961.

Petition for Rehearing and Reconsideration Denied April 6, 1961.

Syllabus by the Court

1. It was the intention of our legislature, in enacting our gambling statute, to broadly prohibit so as to discourage gambling in all its forms. In the interpretation of statutes, the established rules of construction, including that of ejusdem generis, are aids in ascertaining and giving effect to the legislative intent, but these rules cannot be used in contravention of the purpose of the legislature by confining the operation of the statute within narrower limits than intended.

2. Words and phrases in a statute cannot be isolated and be given a meaning foreign to their context. The proper course is to search out and follow the true intent of the legislature and to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature.

3. Under our gambling law (R.L.H.1955, § 288-4) no distinction is drawn between chance and skill, or games of chance and games of skill, but all games so designed that money or other things of value are staked or wagered on the outcome are gambling games.

4. Free games won in playing the game known as 'Fascination' come within the meaning of 'anything of value' as used in R.L.H.1955, § 288-4.

5. The game known as 'Fascination' is within the prohibition of the gambling statute (R.L.H.1955, § 288-4).

6. The terms of a penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. However, a statute will not be held unconstitutional by reason of uncertainty if any sensible construction embracing the legislative purpose may be given it. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible to interpretation will not render it nugatory.

7. The phrase 'any other game in which money or anything of value is lost or won' when read in the context of the gambling statute, R.L.H.1955, § 288-4, provides an ascertainable standard of conduct.

Albert W. Evensen, Honolulu (Wallace S. Fujiyama, Honolulu, with him on the briefs), for plaintiff in error.

John H. Peters, Pros. Atty., Honolulu, for defendant in error.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ and LEWIS, JJ., and WENDELL F. CROCKETT, Circuit Judge, assigned by reason of vacancy.

WIRTZ, Justice.

The defendant was charged, under an amended information in the Circuit Court of the First Circuit, with the offense of being present at a game prohibited by the provisions of Section 288-4, Revised Laws of Hawaii 1955. Defendant demurred, challenging the constitutionality of the statute, upon the ground that the portion of the statute under which defendant was charged was fatally vague and indefinite. That demurrer was overruled and thereupon the parties submitted the case on an agreed statement of facts, in which defendant admitted being present while 'Fascination' was being played. The trial court found 'from the facts that a prohibited game, to wit: Fascination, was being played, contrary to Section 288-4, Revised Laws of Hawaii 1955, and in which the defendant was present while that game was going on' and, accordingly, found the defendant guilty of the misdemeanor and sentenced her to pay a fine of $25. The case is now before this court on Writ of Error to the judgment and sentence.

The facts in this case were stipulated to and are not in dispute. In brief, 'Fascination' is played on a table at one end of which there is a square arrangement of 25 holes consisting of five vertical and five horizontal rows. The player is seated behind the opposite end of the table and is furnished a hard rubber ball, about one-eighth of an inch smaller than the holes. This ball is rolled up a gradient plane toward the rows of holes. Between the player and the holes is a barrier extending across the width of the rows of holes which the ball must surmount before reaching the holes. As the ball enters a hole an electrical device lights up the location on a reproduction of the playing grid set up on a vertical backboard of the device. If the ball does not enter one of the holes, it rolls off to the side and enters an opening. In either case, the ball is returned to the player for the next roll.

In the establishment under consideration, there are 38 individual playing devices and each player pays a playing fee of ten cents per game. As many as 38, but not less than two players compete against each other and the object is to be the first player to light a vertical, horizontal or diagonal five-hole row, after the fashion of 'bingo.' When one of the players makes such a row, the game between all automatically ends. The winner is awarded a coupon or coupons, the number depending upon the particular arrangement of the row of five holes scored. These coupons may either be used for the playing of additional games, or to redeem merchandise displayed on the premises. Defendant was present upon the premises tending the merchandise counter.

Section 288-4, Revised Laws of Hawaii 1955, reads as follows:

' § 288-4. Playing prohibited games. Every person who deals, plays or carries on, opens or causes to be opened, or who conducts either as owner or employee, whether for hire or not, any game of faro, monte, roulette, tan, fan tan, or any banking or percentage game played with cards, dice or any device for money, checks, credit or anything representative of value or any other game in which money or anything of value is lost or won, and every person who plays or bets at or against any such prohibited game or games and every person present where such game or games are being played or carried on, is guilty of a misdemeanor.'

The paramount question here involved is whether 'Fascination' is a game within the proscription of the statute.

Defendant contends that 'any other game' as used in the statute refers to games of chance and that this is the reasonable construction of the phrase since any other construction results in an absurdity not intended by the legislature, namely, the prohibition of all games, including those of skill, wherein something of value is won or lost. She urges that the rule of ejusdem generis must be applied, and, since the common denominator of all the enumerated games in the statute is the element of chance, only games of chance and not games in which skill predominates over chance are prohibited. The court below held, as the State contends, that it is immaterial whether skill predominates over chance and, further, that playing 'Fascination' involves the winning or losing of something of value in violation of the statute.

Under this appeal defendant lists seven assignments of error.

These specifications of error pose three principal questions which will be stated as they are discussed. The first of these questions thus raised, is: Was it the intent of the legislature to prohibit games in which money or anything of value was won or lost, irrespective of whether skill or chance predominated on the part of the participants?

The contention is made that the phrase 'any other game' as used in the statute is ambiguous in that it could mean either 'all games,' or, 'any other such prohibited games,' that is, games of the same type or class enumerated in the statute, or 'any other gambling games.'

In construing a statute the paramount guide is the intent of the legislature. While the established rules of construction, including that of ejusdem generis, are aids in ascertaining and giving effect to the legislative intent, these rules cannot be used in contravention of the purpose of the legislature by confining the operation of the statute within narrower limits than intended. They are neither final nor conclusive but must yield to the legislative will. 50 Am.Jur., Statutes, § 224, p. 203. Even the rule that penal statutes are to be strictly construed does not permit a court to ignore the legislative intent, nor does it require the rejection of that sense of the words used which best harmonizes with the design of the statute or the end in view. 50 Am.Jur., Statutes, § 415, p. 439. And the mere fact that the language of the penal statute is open to several constructions, one of which would sustain a conviction and the others an acquittal does not require that the interpretation be made in favor of freedom. The interpretation sustaining the conviction will be adopted if the court is satisfied that such was the sufficiently expressed intention of the legislature. Territory v. Palai, 23 Haw. 133; Cf., R.L.H.1955, § 1-18.

Perhaps no section of our statutes has been interpreted more frequently by the courts than the one now under scrutiny. Although the statute is penal in nature, it has been given a comprehensive interpretation, mainly because of its legislative history.

The history of the pertinent portion of our gambling statute, Section 288-4, Revised Laws of Hawaii 1955, goes back to 1850, where it had its origin in Section 1 of Chapter XL of the Penal Code of 1850, which read as follows: 'Whoever by playing at cards, or any other game, wins or loses any sum of money or thing of value is guilty of gaming.'

Chapter XL, Penal Code of 1850, provided criminal penalties and civil remedies, the latter practically remaining unchanged in our present law. Section 1 of Chapter XL, Penal Code of 1850 was amended in minor respects by later acts in 1870 and 1890. Except for the sections relating to civil remedies all of the laws relating to gaming were repealed and re-enacted in their present form by Act 21 of the Laws of the Provisional Government, 1893-4. This repeal and re-enactment of the gaming laws grew out of the revolution of 1893 wherein the monarchy of Queen Liliuokalani was overthrown. The re-enactmen...