State v. Brown
| Decision Date | 20 May 1942 |
| Docket Number | 649. |
| Citation | 20 S.E.2d 286,221 N.C. 301 |
| Parties | STATE v. BROWN et al. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Upon appeal from the Municipal-County Court of the City of Greensboro, the defendants were tried at the December Term 1941, of Guilford Superior Court on a warrant charging them with maintaining a nuisance in the City of Greensboro, in that they "leased and used a building and premises therein and maintained an office for the purpose of unlawful gaming and gambling, and where unlawful gaming and gambling was continuously carried on, in the thickly populated business district of the City of Greensboro, North Carolina and where a large number of people daily congregated for the purpose of unlawful gaming and gambling, by betting and wagering on horse races, and where they did unlawfully gamble by betting on the results of horse races, all of which was a menace to public morals and constituted a common nuisance to the public generally."
The jury rendered a special verdict, finding facts substantially as follows:
The defendant Brown, with the assistance of his employee Yow, operated a place of business in Greensboro, equipped with means of receiving and disseminating information with reference to horse racing by means of blackboard, megaphone or loud speaker, teletype, sporting newspapers, esspecially those relating to horse racing, desks, and telephones. At this place Yow received, and then transmitted to his employer, Brown, at 222 1/2 South Green Street, the main office or place of business, results of horse races run on courses outside of North Carolina, by means of connecting telephones. Both of said places were equipped and were designed and intended for the purpose of receiving offers of wagers on horse races held at various places outside North Carolina. The physical equipment could be used, and was used, to indicate and report the progress of races while being run, including an 80 foot blackboard in constant use during business hours for carrying information concerning the races. In the place at 222 1/2 South Green Street, there was an auditorium with fifty seats and standing room for one hundred additional persons.
A ledger was kept by Brown, showing data with reference to "Transactions for Horse Wagers," with statements showing offers of wagers received by Brown from a customer through a period from March 8, 1941, through April 25, 1941.
The method of procedure, as disclosed by defendants' records, was that Brown received offers of wagers at the Greensboro place, which were transmitted to race tracks outside the State for "acceptance." If customers were successful, their winnings were transmitted by race track officials to defendants, and defendants paid off the wagers to customers.
The defendants Myers and Crotts were employees of Brown, assisting in carrying on the business.
Brown had a license from the City of Greensboro, under a taxing ordinance upon the use of ticker service or other device for receiving and imparting information concerning games and sporting events, including horse racing, for which he paid the city $300.
Upon this verdict, the Presiding Judge pronounced the defendants guilty as a matter of law upon the facts. C.S. § 3180.
From a sentence of imprisonment, suspended upon conditions, the defendants appeal.
Shelley B. Caveness and Thomas Turner, Jr., both of Greensboro, for defendants-appellants.
Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton, Asst. Attys. Gen., for the State.
The labors of the Court have been lightened by the marked ability with which this case was argued on both sides and the full treatment, in the opposing briefs, of the subject involved.
We have to determine precisely the same question that was presented to the trial judge on the special verdict of the jury: Are the defendants guilty, under the law, upon the facts found in the special verdict? A careful consideration of the facts, pertinent law, and the arguments of counsel, leads us to the conclusion that the answer should be affirmative.
Nevertheless, the defendants have challenged the correctness of this view, as taken by the court below, with arguments which merit serious attention. Counsel contend that the activities carried on at Brown's place of business and participated in by the defendants were not within the purview of the statute for the following reasons: (a) Because the evil which, upon its face, the statute was intended to remedy is the facility which the maintenance of the premises affords for the commission of certain specified criminal acts; and as applied to the defendants, the criminal offense of gambling or betting on a game of chance; and they contend that betting on horse races is not such a criminal offense; (b) because, if betting on horse races should be held a criminal offense, non constat that the defendants are guilty, since the transaction was not at any time completed within this State, nor could be as the business was conducted, and such completion of the betting transaction, as they contend, is contemplated by the statute, and is necessary to the definition of nuisance denounced by it. The defendants further contend that the transactions described in the jury's findings are insufficient to constitute a public nuisance within the common-law definition, and could not be so unless the acts of the customers in themselves constituted a crime out of which the nuisance might arise. They also point out that the operations on the premises were carried on without disorder or noise, and did not disturb the peace and quiet of the neighborhood.
Barring the catastrophe of war and the ideologies which engender it, which now overshadow our progress, civilization in English speaking countries has come a long way since the English view of sports, stressed by the defendants as receiving the tolerance of the law, was transplanted to this country. Cock fighting, bear baiting, and goose pulling have gone their way, and gambling at cards and wagering upon games of chance are no longer innocent sports. Defendants contend that betting on horse races is not yet under the ban of the law, although wagering contracts in connection therewith have been outlawed. C.S. § 2142. They cite in support of this proposition a number of earlier cases in this State--McKenzie v. Ashe, 2 N.C. 502; Moore v. Simpson, 5 N.C. 33, 34--and some from other jurisdictions. In reply to this, counsel for the State cite C.S. § 2142, supra, and argue that the effect of this statute is to make such betting a criminal offense by declaring it to be unlawful, applying the doctrine asserted in State v. Pierce, 123 N.C. 745, 747, 31 S.E. 847: "The doctrine is well settled that where the statute either makes an act unlawful, or imposes a punishment for its commission, such act becomes a crime, without any express declaration that it shall be a crime or of its grade." See, also, State v. Parker, 91 N.C. 650; State v. Bloodworth, 94 N.C. 918. It is pointed out that it was the intention of the statute to make betting on horse races a criminal offense, since such wagering contracts had already been outlawed and the denouncement of the wager as unlawful came in by amendment at a later time; and also, because Section 2143 provides that no person shall be excused from giving testimony concerning such bets and wagers, but that such testimony given under compulsion "shall not be used against him, in any criminal prosecution, on account of such betting, wagering or staking."
Frequent attempts, some of them successful, to make pari mutuel betting on horse races lawful in certain parts of the State express, at least, the general view that the practice is a violation of the law.
In avoidance of C.S. § 4430, which makes it a misdemeanor to "play at any game of chance at which any money, property or other thing of value is bet," or to bet thereon defendants contend that if horse racing is a game at all, it is not one of chance, but one of skill, and cite State v. Gupton, 30 N.C. 271, 273; State v. King, 113 N.C. 631, 18 S.E. 169; and State v. Morgan, 133 N.C. 743, 45 S.E. 1033, all of which make a distinction between games of chance and games of skill, holding that the latter are not within the condemnation of the law. State v. Abbott, 218 N.C. 470, 479, 480, 11 S.E.2d 539. But we apprehend that what is a...
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