Mastoras v. State

• Decision Date: 22 February 1938
• Docket Number: 7 Div. 343.
• Parties: MASTORAS v. STATE.
• Court: Alabama Court of Appeals

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.

Motley & Motley, of Gadsden, for appellant.

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." 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 luck, in which neither the will nor skill of man can operate to influence the result of winning or losing. (c) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, for the division of or distribution of either money or articles of personal property, where said distribution or division is to be determined by lot or chance amongst those who take shares or are interested in the scheme. (d) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, which is operated or can be operated as a game of chance. (e) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, where money or property is hazarded on chance, or risked on an uncertain event. (f) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, into which money is placed or deposited upon chance or upon the result of the action of such machine, mechanical device, contrivance, appliance or invention. (g) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, which dispenses to the player or operator of the same any package of merchandise and also gives the player or operator the chance of placing himself in a position where his next succeeding play will assure him of a return of several times the value of the coin placed therein by him. (h) Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, intended for the...