Eubanks v. State

• Court: Missouri Supreme Court
• Writing for the Court: MCGIRK
• Citation: Eubanks v. State, 5 Mo. 450 (Mo. 1838)
• Decision Date: 30 September 1838
• Parties: EUBANKS v. THE STATE.

5 Mo. 450

EUBANKS

v.THE STATE.

Supreme Court of Missouri.

September Term, 1838.

ERROR FROM THE CIRCUIT COURT OF COOPER COUNTY.

HAYDEN & WILSON, for Plaintiff in Error.

NAPTON, Attorney-General, for the State.

MCGIRK, J.

Eubanks was indicted by the grand jury of Cooper county for gaming contrary to the statute. The indictment charges that on the first day of January, 1838, the plaintiff in error did unlawfully bet the sum of five dollars at and upon a certain game of chance, then and there played, called cards, and played at and upon a certain gambling device, called cards, adapted, devised and designed for the purpose of playing games of chance for money and property, against the statute, &c. To this indictment the defendant, Eubanks, demurred. The Circuit Court overruled the demurrer and gave judgment for the State.

For the plaintiff in error Messrs. Hayden & Wilson insist, that betting on a game at cards is not within the statute prohibiting gaming. By the 15th section of the 8th article of the act respecting crimes and punishments (Rev. Code, 207), it is declared, that “every person who shall set up or keep any table or gambling device, commonly called A. B. C., Faro Bank, E. O., Roulette, Equality, or any kind of gaming table, or gambling device, and designed for the purpose of playing any game of chance for money or property, and shall induce, entice, or permit any person to bet or play at or upon any such gaming table or gambling device,” &c. This section then points out several sorts of gambling devices which it forbids to be kept; then forbids in general words the keeping or setting up all and every kind of gambling device, designed for playing games of chance, with or upon, for money; then it imposes a penalty on the setters up and keepers of such devices, tables, &c. The 16th section provides that “every person who shall bet any money or property, or play at or upon any gaming table, bank or device, prohibited by the preceding section, or who shall bet upon or play at any game played at or by means of any such gaming table, bank or other device shall be fined,” &c.

One argument of the plaintiff's counsel is, that “the words of the 16th section cannot be carried beyond the specifications of tables, banks, &c., in the 15th section; and such gambling devices as are of like description in point of conformation or principal, and they utterly reject the general words in the 15th section, or any kind of gambling device adapted, designed, &c., for...