Ex parte Gray

• Decision Date: 16 March 1922
• Docket Number: Criminal 522
• Citation: 204 P. 1029,23 Ariz. 461
• Parties: In the Matter of the Application of H. E. GRAY for Writ of Habeas Corpus. H. E. GRAY, Appellant, v. JOHN MONTGOMERY, Sheriff of the County of Maricopa, State of Arizona, Respondent
• Court: Arizona Supreme Court

204 P. 1029

23 Ariz. 461

In the Matter of the Application of H. E. GRAY for Writ of Habeas Corpus. H. E. GRAY, Appellant, v. JOHN MONTGOMERY, Sheriff of the County of Maricopa, State of Arizona, Respondent

Criminal No. 522

Supreme Court of Arizona

March 16, 1922

APPEAL from an order of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Order affirmed.

Messrs Baker & Whitney, for Appellant.

Mr. W J. Galbraith, Attorney General, and Mr. F. W. Perkins and Mr George R. Hill, Assistant Attorneys General, for Appellee.

OPINION

FLANIGAN, J.

This is an appeal from an order of the superior court of Maricopa county, refusing to discharge the appellant on a writ of habeas corpus. In his application for the writ the appellant alleged that he was imprisoned by virtue of a warrant of arrest issued out of the justice court of East Phoenix precinct of Maricopa county, on a complaint filed in that court charging him with the crime of gaming, the charging part of which reads as follows:

"The said H. E. Gray on or about the twenty-sixth day of August, 1921, and before the filing of this complaint, at -- precinct, in the county of Maricopa, state of Arizona, did then and there willfully and unlawfully open, carry on and conduct as owner and proprietor thereof at his place of business in the city of Phoenix, county of Maricopa, state of Arizona, a certain game, then and there played by means of a board of a like character to a punch board for money, checks, and other representatives of value, to wit, candy, and operated and played as follows, to wit: Said defendant then and there exhibited to his customers and to the public a board containing six hundred (600) gold-plated collar buttons, and on said board under each of said collar buttons was a number, and said board was so played and operated by defendant that boxes of candy were given as premiums or gifts to persons exposing certain numbers on said board after said persons had purchased one or more of said collar buttons at the price of ten cents each; that said candy so given to said persons purchasing said collar buttons and exposing certain numbers was given under the pretext of advertising, contrary to the form," etc.

It is contended that the said warrant and process are void and not authorized by law because the complaint fails to state facts sufficient to show the commission of a public offense. Appellant properly concedes that no merely formal defects of the complaint may be considered in this proceeding, but that we should consider rather the substantial allegations thereof.

On this appeal, the controversy was made to hinge upon the sufficiency of the facts alleged to state a public offense under section 319 of the Penal Code, as amended, which reads:

"Every person who shall deal, carry on, or open, or cause to be opened, or who shall conduct, either as owner, proprietor or employee, whether for hire or not, any game of faro, monte, roulette, lasquenet, rouge et noir, rondo, vingt-un or twenty-one, poker, stud poker, draw poker, bluff, fan tan, thaw, seven and one-half, chuck-a-luck, blackjack, 'panginki,' or any similar game whatsoever, played with cards, dice, or any other device, and every slot machine, punch board, or machine of like character, whether the same be played for money, checks, credits or any other representative of value within the state of Arizona; and every person who shall participate in any of the above-enumerated games dealt, carried on, opened or caused to be opened by any other person in the state of Arizona, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars, nor more than three hundred dollars, or by imprisonment for not more than six months or by both such fine and imprisonment." See Referendum Measures. Appendix to Session Laws 1919, p. 12.

It is contended by appellant that as the game is alleged to have been played for candy, and as candy is neither "Money, checks, credits, or any other representative of value," within the meaning of the words as used in the section quoted, that no offense is stated. We agree with this contention, but in view of the disposition made of the case we shall not extend this opinion by discussing that phase of the matter at any length. The history of the enactment is persuasive to show that it was not intended by these words to prohibit the playing of these games for property when not used as a token of value. It is common knowledge that such games are usually played either for money, or for checks, credits, markers, or tokens representing money, or value in the form of money, and we may assume that the practice of playing these games for property, which in itself has value, was not sufficiently prevalent, or of such potency for evil, as to call for condemnation in the statute quoted. However that may be, we are bound by the law as it is written. Ejusdem generis is the applicable principle. See Ex parte Williams, 7 Cal. Unrep. 301, 87 P. 565.

Notwithstanding this conclusion, we are satisfied that the complaint, though not very aptly drawn, does state facts showing the commission of a public offense prohibited by section 325 of the Penal Code, which reads:

"It shall be unlawful for any person, by himself, or another, to keep, maintain, employ or carry on any lottery, or lottery scheme or device, or raffle within this state. Any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor." We have not had the advantage of a discussion of this phase of the case in the briefs, or other argument of counsel. Because of that omission we have been very careful to confirm our own views by a somewhat extensive research of the authorities. If the complaint fairly states facts sufficient to show the commission of a public offense by appellant, it is not only the performance of a function we cannot abnegate but our duty so to declare, and to uphold the ruling of the lower court refusing to discharge appellant from imprisonment.

The statute (section 325), while condemning lotteries, lottery schemes and devices, does not define the meaning of such words. Where not defined by statute it is settled that the word "lottery" cannot be regarded as having any technical or legal signification different from the popular one. And statutes prohibiting lotteries should be construed with a view to remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief. State v. Mercantile Assn., 45 Kan. 351, 23 Am. St. Rep. 727, 11 L.R.A. 430, 25 P. 984; Yellow-Stone Kit v. State, 88 Ala. 196, 16 Am. St. Rep. 38, 7 L.R.A. 599, 7 So. 338; State v. Clark, 33 N.H. 329, 66 Am. Dec. 723. The courts will look to the substance and actual operation of the scheme or device charged to be a lottery to determine whether it possesses that character. State v. Nebraska Home Co., 66 Neb. 349, 103 Am. St. Rep. 706, 1 Ann. Cas. 88, and note, 60 L.R.A. 448, 92 N.W. 763.

In the sense used in the criminal law, lotteries are a species of gaming. State v. Perry, 154 N.C. 616, 70 S.E. 387. And so in our law, as section 325, supra, is a part of chapter 10, title 9, part 1, of our Penal Code, the chapter being entitled "Gaming." Generally, every scheme for the distribution of prizes by chance is a lottery. State v. Overton, 16 Nev. 136. And a lottery, as such, embraces the elements of procuring through lot or chance, by the investment of a sum of money, or something of value, some greater amount of money or thing of greater value. United States v. Fulkerson (D.C.), 74 F. 619.

The following definition of a lottery has received approval Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery. Hull v. Ruggles, 56 N.Y. 424; Wilkinson v. Gill, 74 N.Y. 63, 30 Am....