Mcbride v. State

• Decision Date: 20 July 1897
• Citation: 22 So. 711,39 Fla. 442
• Parties: McBRIDE v. STATE.
• Court: Florida Supreme Court

22 So. 711

39 Fla. 442

McBRIDE v. STATE.

Florida Supreme Court

July 20, 1897

Error to criminal court of record, Duval county; Henry B. Philips Judge.

T. O McBride was convicted of gaming, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a statute fully defines the offense that it creates, it is ordinarily sufficient for an indictment to charge the defendant with all the acts within the statutory definition substantially in the words of the statute, without further expansion. Section 2644 of the Revised Statutes, prolibiting the keeping of a table, room, house, or other place for the purpose of gaming or gambling, held to fall within this rule and to so define the offense that it creates as that an indictment charging such offense substantially in its language will be sufficient.

2. The terms 'gaming' and 'gambling,' as used in this statute to suppress gambling houses, are similar in meaning. The wagering, betting, or laying of money or other thing of value upon the transpiring of any event whatsoever whether it be upon the result of a game of chance or upon a contest of skill, strength, speed, or endurance, whereby one party gains and the other loses something for nothing, whether the parties betting be the actors in the event upon which their wager is laid or not, is gaming or gambling, within the meaning of this statute.

3. The purpose of section 2644 of the Revised Statutes was to prohibit, not the gaming or gambling itself, but the keeping of a house or other place for any manner of gaming or gambling. If a house is kept for the purpose of having money or other thing of value staked, bet, or wagered therein upon any result or event whatsoever, such house falls within the inhibition of this statute, whether the means adopted for the decision of the question as to who is the winner or loser of the amount or thing wagered be a game prohibited by law or not.

4. The keeping of a house, room, or other place for the purpose of betting upon horse races conducted at a distant point, such bets being made in the form of a sale and purchase of what are known as 'pools' upon such races, falls within the inhibition of this statute prohibiting the keeping of a gambling house.

5. Sections 2644 and 2645 of the Revised Statutes make all the parties concerned in the keeping of a gambling house principals, whether in the conduct thereof the one acts as agent or clerk of another or on his own behalf as principal. The first of the two sections makes the principal liable whether he conducts the establishment in person, or has it conducted for him by an agent, clerk, or servant. When conducted by an agent, clerk, or servant, the second of the two mentioned sections makes such agent, clerk, or servant a principal in the crime equally punishable with his employer, and it is not necessary to indict or charge him as agent, but he can be informed against as principal and convicted upon proof showing that he violated the law in the capacity of agent for another.

COUNSEL Pope & Campbell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR, C.J.

The plaintiff in error was tried and convicted in December, 1896 in the criminal court of record for Duval county for the crime of keeping and maintaining a gaming room, and from the sentence inflicted takes writ of error here.

The count of the information upon which the defendant was tried and convicted, omitting its formal parts, is as follows: 'That T. O. McBride, of the county of Duval, and state of Florida, on the 5th day of December, in the year of our Lord one thousand eight hundred and ninety-six, and on divers other days and times between such day and the filing of this information, did then and there unlawfully and feloniously have, keep, exercise, and maintain a gaming room in the building situated at the northeast corner of the intersection of the streets known as Bay street and Hogan street, in the city of Jacksonville, for the purpose of gaming and gambling.'

The undisputed facts in the case are as follows: The defendant kept a room, in which he had a telegraph instrument and operator, with a wire connecting him with New York and Savannah. On the wall of the room was a blackboard, on which were registered the names of various horses entered for races at New Orleans, with the odds that were offered for and against the different horses in the betting made upon the races. Divers persons frequented the room, and paid the defendant the amounts that they desired to wager on the horse of their selection, and for the money paid he gave a card or ticket as evidence of the transaction. The purchasers of these tickets or pools would then wait in the room until the impending horse in New Orleans was over, when the result was promptly received by telegraph, advertised on the blackboard, and the parties having purchased pools on the winning horses were paid the amounts won by the success of the horses of their selection. The defendant operated here as agent for a firm of turfmen in Savannah, Ga., receiving commissions on the business done as his remuneration. No other business was carried on in the room except the sale of pools upon distant horse racing; no other game of any kind being shown to have been played or allowed there. There are no facts in the case involving any question of the right of incorporated companies to sell pools on race tracks, under chapter 4023, Laws 1891.

There are 19 assignments of error, but we will not consider any of them except those that are urged here and argued, treating the others as abandoned.

The first contention of the defendant is that the information upon which he was tried does not sufficiently charge any offense, and should have been quashed. Section 2644 of the Revised Statutes, upon which the information was laid, reads as follows: 'Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling, or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be punished by imprisonment in the state prison not exceeding three years, or by fine not exceeding five thousand dollars.' The gist of the offense prohibited by this statute is 'the keeping and maintaining of a house, room, or other place for the purpose of gaming or gambling.' We think it is one of those cases where every allegation necessary to a full and proper charging of the offense is included within the language used in the statute itself, and that an indictment or information charging the offense in the language of the statute, as does the information here, is sufficient under the law. The statute here fully defines the offense that it creates, and in such cases it is ordinarily sufficient to charge the defendant with all the acts within the statutory definition, substantially in the words of the statute, without further expansion. 1 Bish. Cr. Proc. (3d Ed.) § 611, and cases cited; State v. Prescott, 33 N.H. 212; Campbell v. State, 2 Tex. App. 187; Stoltz v. People, 4 Scam. 168; Montee v. Com., 3 J. J. Marsh. 132; State v. Fulton, 19 Mo. 680; Wheeler v. State, 42 Md. 563; Bish. St. Crimes (2d Ed.) § 890; Groner v. State, 6 Fla. 39.

It is next contended that the evidence in the cause does not make out any crime under the law; that betting upon horse racing is not specifically prohibited by our law, and...