Mastoras v. State, 7 Div. 343.

• Court: Alabama Court of Appeals
• Citation: 28 Ala.App. 123,180 So. 113
• Docket Number: 7 Div. 343.
• Parties: MASTORAS v. STATE.
• Decision Date: 22 February 1938

180 So. 113

28 Ala.App. 123

MASTORAS
v.
STATE.

7 Div. 343.

Court of Appeals of Alabama

February 22, 1938

Rehearing Denied March 8, 1938.

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.

George Mastoras was convicted of operating a gambling device, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Mastoras v. State (7 Div. 503) 180 So. 115.

[28 Ala.App. 124] Motley & Motley, of Gadsden, for appellant.

[28 Ala.App. 125] A. A. Carmichael, Atty. Gen., for the State.

SAMFORD, Judge.

The indictment charges: "The Grand Jury of said County charges that before the finding of this indictment George Mastoras, whose name is unknown to the Grand Jury otherwise than as stated, did possess, keep, own, set up, operate, or conduct, or did permit to be set up, operated, or conducted, a gambling device contrary to law." [180 So. 114] The appeal is taken without bill of exceptions, and the only question presented is the action of the court in overruling defendant's demurrer to the first count of the indictment. The second count of the indictment was eliminated by verdict of the jury.

The first objection as raised by demurrer is that the word "permit," as used in the indictment, has the effect of charging that the defendant innocently consented to the acts charged without taking any steps to prevent such acts. We do not accord to this view. The word "permit," as used in the statute, has a more strict meaning, and, in this connection, is used as synonymous with "to grant," "to license," "to authorize," "to give leave," which carries with it an active participation in connection with the gambling device described.

A more serious question is raised by that line of demurrer which raises the question that the indictment on its face includes acts of the defendant not prohibited by the law under which the indictment is drawn.

Section 3 of the Act of the Legislature, approved July 25, 1931, Acts 1931, p. 806, provides: "That it shall be unlawful for any person, firm, corporation or association of persons, within this State, to possess, keep, own, set up, operate, or conduct, or permit to be set up, operated, or conducted, any gambling device prescribed in Section 1 of this Act, at any place whatsoever." Acts 1931, p. 807.

The gambling devices, thereby prohibited, are those named and designated in section 1 of the act above noted, to wit: "(a) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, in the use of which a consideration is paid or deposited, and there is gambling or the hazarding of small amounts of money or property to win larger amounts of money or property. (b) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, which determines the result of winning or losing money or property by chance, lot or...