Creash v. State

• Decision Date: 02 February 1938
• Citation: 131 Fla. 111,179 So. 149
• Parties: CREASH et al. v. STATE.
• Court: Florida Supreme Court

179 So. 149

131 Fla. 111

CREASH et al. v. STATE.

Florida Supreme Court

February 2, 1938

Error to Criminal Court of Record, Hillsborough County; John R Himes, Judge.

Joseph Creash and others were convicted of keeping and operating a gambling house, and they bring error.

Affirmed.

COUNSEL Zewadski & Pierce, of Tampa, for plaintiffs in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for the State.

OPINION

TERRELL Justice.

Plaintiffs in error were tried and convicted in the criminal court of record for Hillsborough county on an information charging them with keeping and operating a gambling house contrary to section 5499, Revised General Statutes of 1920, section 7657, Compiled General Laws of 1927, as follows:

'Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be punished by imprisonment in the State prison not exceeding three years, or by fine not exceeding five thousand dollars.'

The defendants, Joseph Creash and Arthur Looff, were adjudged guilty and sentenced to pay a fine of $50 each with costs of court, or, in default thereof, to be confined in the county jail at hard labor for a period of sixty days. The defendants, Al Brown, Fred Conroy, Jack Preist, and Joe Brewer, were adjudged guilty and sentenced to pay a fine of $12.50 and costs of court, or, in default thereof, to be confined in the county jail at hard labor for a period of thirty days. They seek relief from the judgment so imposed by writ of error.

The question of whether or not defendants were guilty of the charge lodged against them turns on that of whether or not they owned or operated a room or house in which gaming or gambling was carried on. The statutes of this state do not attempt to define gambling, or to point out all games and devices that constitute gambling. This court did, however, venture a definition of the term in McBride v. State, 39 Fla. 442, 22 So. 711, 712, as follows:

"Gaming is an agreement between two or more to risk money on a contest of chance of any kind, where one must be loser and the other gainer.' A most apt definition of 'gambling,' adopted by Anderson in his Law Dictionary, is by Judge Thompson, in Brua's Appeal, 55 Pa. 294, text 298, as follows: 'Anything which induces men to risk their money or property without any other hope of return than to get for nothing any given amount from another is gambling, and demoralizing to the community, no matter by what name it may be called. It is the same whether the promise be to pay on the color of a card, or the fleetness of a horse, and the same numerals indicate how much is lost and won in either case, and the losing party has received just as much for the money parted with in the one case as in the other, viz. nothing at all."

To constitute gambling, it is immaterial by what name it is called if the elements of gambling are present and it is condemned by statute in nothing more than the use of the generic term. It is charged here that plaintiffs in error kept a house in which 'Bingo' was played. The first question posited stated generally how it was played, and is as follows:

'Where the operator of a game posts a prize in a fixed amount prior to the beginning of each game, and each contestant pays a small entrance fee to the operator for the privilege of participating therein, although the operator does not himself anticipate and stands no chance to gain back any part of the prize which he offers but on the contrary such prize in its entirety is certain to be paid out to the winning contestant regardless of the number of contestants, and all entrance fees are paid into a common fund of the operator out of which is paid all operating expenses of the establishment, including salaries, current expenses, license taxes for operating the game, advertisements, etc., as well as the prizes themselves, and such games are run off at regular time intervals, and a substantial amount of skill is involved in the playing of the game by the contestants--is such game so operated as aforesaid, a violation of the gaming laws of Florida?'

A fair epitome of the evidence with reference to the manner of playing and the apparatus used in the conduct of 'Bingo' shows that the management of the house offers a prize to the winner which is announced before the beginning of each game. Each player pays an entrance fee of 10 cents which entitles him to participate in the game. On entering the game he selects a card containing twenty-four different numbers ranging from 1 to 75, arranged in rows of five across the card up and down and diagonally; the center being blank and the numbers on each card being arranged differently. Neither the management nor its employees participate in the game. To play the game, a box or hopper divided into 75 square wooden slots arranged in 5 rows of 15 slots each numbered consecutively from 1 to 75 is provided. A small baseball is furnished each player. These baseballs are thrown one by one beginning with the first player, each player throwing one ball alternately unless the game is earlier concluded, in which event the next player begins the following game and the rotation is continued. As each ball is thrown in the box and lands in a slot, the management calls out the number of that particular slot and all players having the corresponding number on their card place a bean over that number. The first player who has five numbers covered by beans in a row, either horizontally, perpendicularly, or diagonally from the corners, is the winner. When this occurs, the player calls 'Bingo.' He is checked by the management, and, if found true, he is declared the winner and the corresponding prize awarded him.

All the games are run strictly on schedule, but the prizes vary. There are three $5 games, then a $10 game, then four $5 games, then a $15 game, and then a $10 game, when the schedule is completed and a new one is begun. The prizes are not in cash, but orders for merchandise upon Tampa merchants selected by the winner. The schedule of prizes and games are run at regular intervals regardless of the number of players and entrance fees paid.

The management has a bank account from which all prizes, general operating expenses of the establishment, including license fees and overhead costs, are paid. All entrance fees go into this account, but the amount or value of the prize offered is always in the bank account before any entrance fees are paid and the prize is in no sense determined by the number of such fees paid. It is shown that both the hope of winning a prize and amusement induce the playing. It is also shown that the prospect of winning depends to some extent on the skill in selecting the cards and in throwing the balls.

Does such a state of facts about which there is no dispute constitute gaming or gambling as defined by the law of this State? Plaintiffs in error contend that this question must be answered in the negative, that the facts show nothing more than a contest for a 'purse, prize, or premium' as distinguished from a 'stake, bet, or wager' which is essential to constitute gambling, that a contest for a 'purse, prize, or premium' is not gambling, but is essentially a game of skill because of the element of skill involved in the result. Johns v. Smith, 77 Fla. 398, 81 So. 514; Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51; Reinmiller v. State, 93 Fla. 462, 111 So. 633, are relied on to support this contention.

It is quite true that in these cases we defined a 'purse, prize, or premium' as something of value offered for the winner of a contest, but for which the one offering it does not compete and stands no chance to recover any part of it. We also held that a 'purse, prize, or premium' was different from a 'stake, bet, or wager' as to which each party interested has a chance to win and takes the risk of losing the whole or some material part of it.

We do not understand, however, that the question of gambling or one's guilt who is charged with operating a gambling house is concluded by the question of whether the thing contested for was a 'purse, prize, or premium' or a 'stake, bet or wager.' In Johns v. Smith, supra, we held that the thing involved was a 'purse, prize, or premium,' and wholly different from a 'stake, bet, or wager,' such as was involved in Pompano Horse Club v. State and Reinmiller v. State, supra. In the two latter cases involving charges of parimutuel betting, we held that the thing contested for was a 'stake, bet, or wager' in violation of section 7672, Compiled General Laws of 1927. Parimutuel betting was later legalized, chapter 14832, Acts 1931, so the decision on that point would now be to the contrary of the latter pronouncement.

Chance actuated by the hope of getting something for nothing is the controlling element in gambling. Any agreement or inducement by which one person risks his money or other thing of value with no prospect of return except to get for nothing the money or goods of another is gambling. If the contest for a 'purse, prize, or premium' or a 'stake, bet or wager' has this element in it, it is gambling, regardless of the name by which it is called, the implements employed to accomplish the act, or the manner in which it is conducted.

In gamblers' lingo, 'stake, bet or wager'...