State v. Baker
| Citation | 71 S.E. 186,69 W.Va. 263 |
| Parties | STATE v. BAKER et al. |
| Decision Date | 25 April 1911 |
| Court | West Virginia Supreme Court |
Submitted February 7, 1911.
Syllabus by the Court.
The keeping of a common gaming house is a misdemeanor at common law, and consequently a violation of the law of this state.
That only those who gamble are admitted to the room where the gambling is carried on, and the rest of the public are excluded therefrom, does not affect the crime.
The keeping of a common gaming house is unlawful, whether the gambling therein be lawful or unlawful.
It is not material that a common gaming house should be kept for lucre or profit.
It is not essential to constitute the offense of keeping a common gaming house that the gambling therein should be in view of the public, or that the public should be disturbed by noise therein.
Error to Circuit Court, Cabell County.
Wiley Baker and Dick Rader were convicted of keeping a gaming house, and bring error. Affirmed.
Marcum & Shepherd, for plaintiffs in error.
Wm. G Conley, Atty. Gen., and Jean F. Smith, Pros. Atty. for the States.
WILLIAMS P.
Wiley Baker and Dick Rader were indicted, tried, and convicted, and adjudged by the circuit court of Cabell county to pay a fine of $50 each, and the costs of their prosecution, for keeping a common gaming house; and they have brought the case here by writ of error.
Is the keeping of a common gaming house a violation of the law of this state? We think it is. It was certainly an offense at the common law. "Common gaming houses are a public nuisance at common law, being detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness and avaricious ways of gaining property persons whose time might otherwise be employed for the good of the community." 2 Russell's Law of Crimes (7th Eng. Ed.) 1897; 1 Bishop's New Crim. Law, § 504. In section 1135 Bishop says: "A common gaming house is a species of disorderly house; the disorder consisting of its allurements tending to evil." Its unlawfulness does not depend upon the unlawfulness of the games which may be therein played. The keeping of a common gaming house is forbidden because it is a public nuisance, tending to evil consequences. All the text-writers say that it is an indictable offense at the common law. Joyce's Law of Nuisance, § 395; 1 Wood on Nuisance,§ 45; Bacon's Abridgment, p. 223; 14 A. & E. E L. 666; 20 Cyc. 893; Woods v. Cottrell, 55 W.Va. 476, 47 S.E. 275, 65 L. R. A. 616, 104 Am. St. Rep. 1004; State v. Ehrlick, 65 W.Va. 700, 64 S.E. 935, 23 L. R. A. (N. S.) 691; Commonwealth v. Warren, 161 Mass. 281, 37 N.E. 172; Thrower v. State, 117 Ga. 753, 45 S.E. 126.
The common law of England was made a part of the law of Virginia; and later, the law of this state. In May, 1776, Virginia passed an ordinance providing that "the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the First, and which are of a general nature, not local to that kingdom, together with the several acts of the General Assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony." 9 Henning's Statutes at Large, 127. The General Assembly by act passed December 27, 1792, repealed so much of the above ordinance as relates to the English statutes made in aid of the common law; but that part of the ordinance making the common law a part of the law of Virginia was not repealed, and the common law of England continued to be the law of Virginia. 1 Min. 51. The first Constitution (1861-63) of West Virginia which became the law of the state upon its admission into the Union (section 8, art. 11) declares: "Such parts of the common law and of the laws of the state of Virginia as are in force within the boundaries of the state of West Virginia, when this Constitution goes into operation, and are not repugnant thereto, shall be and continue the law of this state until altered or repealed by the Legislature." And section 21 of article 8 of the present Constitution (Code 1906, lxxiii) also declares the common law to be the law of this state until altered or repealed by the Legislature. There is no statute in this state which repealed the common law in relation to the offense of keeping a common gaming house; and the common law relating thereto is the law of this state. The statutes against gaming do not repeal by implication the common-law offense of keeping a common gaming house.
The demurrer to the indictment was properly overruled. The offense of keeping a common gaming house is sufficiently alleged. The fact that the indictment alleges that the games which were played in the house kept by defendants were unlawful games is immaterial. Such allegation may be treated as surplusage. It is not necessary that the games which were played should have been unlawful in order to constitute the offense with which defendants are charged.
The state produced a number of witnesses who testified that they had gambled in the room kept by defendants and that they sometimes lost money, and sometimes won money, at a game played with cards called "stud poker." It does not appear that any greater amount of money than $1 or $2 was ever won or lost by one person at any one game or sitting. But the amount won or lost is immaterial, as the amount of money or value of the thing gambled for constitutes no part of the offense of keeping a common...
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