Everhart v. People

• Decision Date: 03 March 1913
• Parties: EVERHART v. PEOPLE.
• Court: Colorado Supreme Court

130 P. 1076

54 Colo. 272

EVERHART v. PEOPLE.

Supreme Court of Colorado

March 3, 1913

Error to District Court, City and County of Denver; George W Allen, Judge.

W. E Everhart was convicted of gaming and unlawfully maintaining a gaming table, in violation of Rev. St. 1908, §§ 1791, 1792 and he brings error. Affirmed.

T. J. O'Donnell, Edwin H. Park, John W. Graham, John A. Rush, Caldwell Yeaman, and J. D. Benedict, all of Denver, for plaintiff in error.

Benjamin Griffith, Atty. Gen., and Charles O'Connor, First Asst. Atty. Gen., for the People.

WHITE J.

An information in two counts was filed against plaintiff in error, upon which he was tried and convicted. The first count was under section 1791, R. S. 1908, and charged that he 'unlawfully did keep and exhibit a certain gaming table, establishment, device and apparatus, * * * to win and gain money by gambling,' etc. The second count was under section 1792, R. S. 1908, and charged that he 'unlawfully did play at a game for a sum of money or other property of value, and did make a bet and wager for a sum of money or other property of value, upon the result of such game,' etc. The proven or admitted facts are that plaintiff in error made books and sold pools upon certain horse races held under the auspices of the Overland Jockey Club at Overland Park race tracks, in the city and county of Denver, on a certain day. Preceding the running of each race, the plaintiff in error entered the names of the horses competing in the race upon a blackboard, placed upright upon a table or platform prepared for that purpose, adjoining the grand stand at the race tracks; and, in conjunction with others employed for the purpose, received the money bet upon the races, giving in exchange therefor cards upon which was recorded the bet, and after the result of each race paid the sums won to the winners upon presentation and surrender of the cards, keeping the balance.

Much of the argument of counsel is predicated upon the assumption that, in order to sustain the judgment of conviction, it is essential to hold that horse racing is unlawful within the intent of these statutes. The assumption is erroneous, and cannot be upheld. Neither the keeping or exhibiting of a gaming table, establishment, device, or apparatus, nor the playing at a game, is prohibited. On the contrary, such things, as far as these sections of the statute are concerned, may be done with impunity. It is only when such tables, etc., are kept or exhibited to win or gain money or property, or when the play at a game is for a sum of money or other property, or a bet is made upon the result of such game, that the acts become unlawful, and the doers thereof subject to punishment. Moreover, there can be a game without the element of either chance or hazard.

A game is any sport or amusement, public or private. It includes physical contests whether of man or beast, when practiced for the purpose of deciding wagers or for the purpose of diversion, as well as games of hazard or skill by means of instruments or devices. Boughner v. Meyer, 5 Colo. 71, 74, 40 Am.Rep. 139; Corson v. Neatheny, 9 Colo. 212, 11 P. 82. As defined in the Century Dictionary, it is 'a contest for success or superiority in a trial of chance, skill or endurance, or of any two or all three of these combined; as, a game at cards, dice, or roulette; the games of billiards, draughts, and dominoes; athletic games; the Floral games. The games of classical antiquity were chiefly public trials of athletic skill and endurance, as in throwing the discus, wrestling, boxing, leaping, running, horse and chariot racing,' etc. Desgain v. Wessner, 161 Ind. 205, 67 N.E. 991; People v. Weithoff, 51 Mich. 203, 16 N.W. 442, 47 Am.Rep. 557. A horse race, according to the weight of authority, though there are decisions to the contrary, is a game within the meaning of the statutes against gaming. 20 Cyc. p. 884; Thrower v. State, 117 Ga. 753, 45 S.E. 126; Swigart v. People, 154 Ill. 284, 40 N.E. 432. Whether it is such within the meaning of the sections under consideration we must now determine. In Corson v. Neatheny, supra, we held that a horse race was a game within the intent of section 1796, R. S. 1908, citing Boughner v. Meyer, supra; Tatman v. Strader, 23 Ill. 493; Shropshire v. Glascock et al., 4 Mo. 536, 31 Am.Dec. 189; Boynton v. Curle, 4 Mo. 599. Boughner v. Meyer, supra, involved the validity of a check, the consideration of which was a wager as to whether a certain execution issued upon a judgment would or would not be collected. Section 1796, supra, was quoted, and the question propounded: 'Was the consideration of the check won by any gaming within the meaning of the section above quoted?' We then said: 'If the wager was upon any game, the check is absolutely void in the hands of every holder. Horse racing has been decided to be gaming within the intent of the language here used. * * * But a wager as to whether an execution can be collected we are constrained to conclude cannot be considered as a wager upon any game.' It was unnecessary to, and we did not, determine therein whether horse racing is a game within the meaning of that word as used in the section. We nevertheless declared that it had been so decided, citing Tatman v. Strader, supra; Shropshire v. Glascock, supra; Boynton v. Curle, supra. But in Corson v. Neatheny, supra, we referred to the Boughner-Meyer Case, and the authorities therein cited, and expressly held that horse racing is gaming within the intent of the section. That the case might have been decided exactly as it was, as claimed by plaintiff in error, does not render the holding obiter. The decision was based upon the applicability of the statute, and therefore determined that horse racing is a game, and betting thereon is gaming, within the meaning of the section.

As the section of the statute involved and construed in the Corson-Neatheny Case affects only contracts, etc., entered into as a result of gaming, or in which the consideration was for money, property, or other valuable thing won by gaming, declaring them void and of no effect and the decisions cited therein are in civil cases, it is claimed that the rule announced and applied therein is not applicable in the construction of the criminal sections. A sufficient answer thereto is that the alleged civil section involved and construed in that case, and the criminal sections upon which this prosecution is based, are embodied in, and form a part of, the same legislative act. Session Laws 1866, p. 56; R. S. 1868, pp. 224, 225, § 135; G. L. 1877, pp. 297-299, §§ 730-736; G. S. 1883, pp. 332-334, §§ 844-851; R. S. 1908, §§ 1791, 1792, 1796. We must ascribe the same meaning to the same words occurring in different parts of the same statute, unless it clearly appears therefrom that a different meaning was intended. Dixon v. People, 127 P. 930. This does not appear from the statute in question. On the contrary, it is clearly evident that the same words in the several sections of the act were used in the same sense, and the purpose of the lawmaking power was to suppress gambling, which, as used in the act, includes betting and winning money or property upon any game whatsoever. The title of the act of 1866 is, 'An act to suppress gambling and gambling houses,' and that law has been in no substantial respect changed or modified by subsequent legislation. We cannot assume that the lawmaking power used the words 'game' and 'gaming' in a different sense in one section of the statute from that in which it employed them in other sections of the same act. In the passage of each of these sections the Legislature must have had in mind the immorality of the acts and the evils resulting. Under section 1791 the party violating the provisions thereof is to be punished by fine and imprisonment. Under section 1792 the offender is subjected to a pecuniary penalty, while under section 1796 certain contracts, etc., the consideration of which has arisen from the practice of the immoral and inhibited acts, are rendered nugatory and of no effect. So, in order to effectually suppress gambling, the act subjects the violator thereof to punishment and makes it impossible, upon the instruments designated, for any person to reap the fruits growing out of the acts prohibited.

But Corson v. Neatheny, supra, as an authority, is questioned. It is claimed that this court in basing that opinion upon Tatman-Strader, supra, did not take into consideration the difference between the Illinois statute and the Colorado statute upon the subject, and that the former statute, after the word 'game' uses the words 'or sport,' and contains other words not found in the latter statute upon which that decision could properly be based. The words 'game' and 'sport' are synonymous. Webster's Dictionary. Moreover, the statute under consideration in the Tatman-Strader Case was section 1 of chapter 46 of the Illinois Revised Statutes of 1845. We observe no substantial difference in respect to the question now under consideration between that section and section 1796, supra, of our own statute. If anything, the language of the latter is broader and more comprehensive than that of the former. It was not until long after the decision in Tatman v Strader, supra, that the words said to be excluded from our statute, and included in the Illinois statute, appeared in either the criminal or civil sections of the statutes of that state. Sections 129, 130, p. 174, and section 1, p. 263, R. S. Ill. 1845; section 1, Public Laws of Illinois 1871-72, p. 462; paragraph 179, § 131, p. 792, vol. 1, Starr & C. Ann. St. Ill. 1885. Counsel for plaintiff in error maintain that the history of the several legislative acts on the subject of gambling in this state shows...