Harris v. State
| Decision Date | 09 December 1960 |
| Citation | 341 S.W.2d 576,11 McCanless 538,207 Tenn. 538 |
| Parties | , 207 Tenn. 538 Jessie HARRIS v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
John R. Jones, H. Dennis Erwin, Erwin, for Jessie Harris.
Thomas E. Fox, Asst. Atty. Gen., for the State.
Plaintiff in error was convicted and fined $250 upon the charge that he 'did unlawfully and knowingly possess a quantity of gambling devices, to wit: seven hundred (700) tip boards and a quantity of tips to the grand jury unknown, contrary to Tennessee Code Annotated section 39-2034(4).' He insists that there is no evidence to support the verdict.
It appears he operated a place of business in Erwin, Tennessee, where he was licensed to sell beer, among other things. Clayton Webb, a constable, went before a Justice of the Peace and made oath that he was informed that plaintiff-in-error had a quantity of 'white liquor' on his premises, and obtained a warrant to search them. Constable Webb, another constable, and agents of the Tennessee Alcohol Tax Unit searched the place but found no liquor.
None of the officers testified except Webb. He said that he found behind the counter 'two boxes of tip boards, about six or seven hundred, of different sizes, some with the tips pulled off the boards'; but that all of them were in the boxes. He also said he 'was not familiar with this type of board.' There was no evidence that any of these things were actually being possessed or used for gambling.
The pertinent part of subsection (4), section 39-2034 of Tennessee Code Annotated, on which this indictment was based, is in these words:
'Whoever knowingly owns, manufactures, possesses, buys, sells, rents, leases, stores, repairs or transports any gambling device, or offers or solicits any interest therein, whether through an agent or employee or otherwise, shall be guilty of a misdemeanor and fined not more than one thousand dollars ($1,000) and in the discretion of the court imprisoned in the county jail or workhouse for some period of time less than one (1) year * * *.'
This subsection does not define the phrase 'gambling device'; but for such definition, it must be read with subsection (4), sec. 39-2033, T.C.A., since they are both part of Chapter 234, Public Acts, 1955, as amended by Chapter 406, Public Acts, 1957. Subsection (4), sec. 39-2033, is as follows:
'(4) 'Gambling device' means any article, device or mechanism by the operation of in any place in which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as the result of the operation of an element of chance; any article, device or mechanism which, when operated for a consideration does not return the same value or thing of value for the same consideration upon each operation thereof; any device, mechanism, furniture, fixture, construction or installation designed primarily for use in connection with professional gambling; and any subassembly or essential part designed or intended for use in connection with any such device, mechanism, furniture, fixture, construction or installation, but pinball machines shall not be deemed to be included in this definition.'
The above quoted subsections are part of our gaming statutes (T.C.A., §§ 39-2001-39-2037 (1932 Code secs. 5250-5252, 11275-11296)), or law for suppression of gambling; and they must be taken in pari materia with such statutes, and construed upon their own words read in the light of the established construction heretofore given such statutes. Cheatham County v. Murff, 176 Tenn. 93, 103, 138 S.W.2d 430, 433; Burks v. State, 194 Tenn. 675, 681, 254 S.W.2d 970, 972.
By the term 'device,' as generally used in statutes against gambling, is meant the 'tangible means, instrument, contrivance, or thing with or by which money may be lost or won, as distinguished from the game itself' (24 Am.Jur., Gaming and Prize Contest, sec. 31, p. 420). Cleek v. State, 189 Tenn. 302, 304, 225 S.W.2d 70, 71; Van Pelt v. State, 193 Tenn. 463, 469, 246 S.W.2d 87, 89.
Since there are many devices which may be used either for gambling or for other purposes innocent and lawful, the mere possession of such a thing is not a violation of our gaming statutes; but, to make it such, there must be proof as to its condition, location, or use, to show it is being possessed or used for the purpose of gambling. Cleek v. State, supra; Van Pelt v. State, supra; Burks v. State, supra.
Thus, in the Cleek case [189 Tenn. 302, 304, 225 S.W.2d 71] it was held that mere possession of 'a punch board, some tip boards and baseball tickets,' would not support a conviction for 'unlawfully keeping' any 'device for gaming' (1932 Code sec. 11276, now T.C.A. § 39-2002), or for unlawfully possessing 'any device whatever for the...
To continue reading
Request your trial
-
Owens v. State
...supplied). In determining whether there is evidence of gambling devices in this case, the important authority is Harris v. State, 207 Tenn. 538, 341 S.W.2d 576 (1960), written for the Court by Mr. Justice Felts. There it was held that a conviction for the possession of gambling devices coul......
-
Keaton v. State
...were not 'in use', or 'in operation', or being 'maintained.' In support of this position they cite the recent case of Harris v. State, 207 Tenn. 538, 341 S.W.2d 576. In this case the Court speaking through Mr. Justice Felts in regard to subsection (4) of Section 39-2033, T.C.A. 'As we have ......
-
State v. Ashley
...deemed to be included in this definition' of gambling devices. The gambling statutes must be construed In pari materia. Harris v. State, 207 Tenn. 538, 341 S.W.2d 576; Griffin v. State, Tenn., 495 S.W.2d 814. TCA 39--2031 which prohibits not only soliciting gambling but engaging in gambling......
-
Alley v. State
...itself, sufficient to sustain a conviction under this charge, Cleek v. State, 189 Tenn. 302, 225 S.W.2d 70 (1949) and Harris v. State, 207 Tenn. 538, 341 S.W.2d 576 (1960), nevertheless the arrangement of the table and the dice, together with the motions and sounds witnessed by the officers......