State v. Gaughan.

• Decision Date: 09 June 1904
• Citation: 55 W.Va. 692
• Court: West Virginia Supreme Court
• Parties: State v. Gaughan.

55 W.Va. 692

State

v.Gaughan.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1904

Decided June 9, 1904.

1. Instruction.

Upon the trial of an indictment under section 1, chapter 151, Code, for unlawfully keeping and exhibiting a gambling device commonly called a "slot machine," it is not error to instruct the jury that "if the jury shall believe from the evidencebeyond a reasonable doubt, that the slot machine described in the indictment is a gaming table, and that the said machine is so constructed that it offers unequal chances to the player and exhibitor, and that the unequal chances are in favor of the exhibitor of said machine, then the said slot machine is a gaming table of like kind and character to A, B, C and E O table, faro bank and keno table." (p. 694).

Error to Circuit Court, Harrison County. Erank Gaughan was convicted of exhibiting a gaming table, and brings error.

Affirmed.

M. G. Sperry, Clarence B. S perry, John Bassel, and! Corn well & Cornwell, for plaintiff in error.

The Attorney General and J. E. Law, for defendant in error.

McWhorter, Judge:

Frank Gaughan was indicted by the grand jury in the circuit court of Harrison county under section 1, chapter 151, Code. The indictment contained three counts. The defendant moved to quash the indictment and each count thereof, which motion, being argued by counsel and considered by the court, was, by consent of the prosecuting attorney for the State and the attorneys for the defendant, sustained as to the first and second counts of said indictment and the court overruled said motion as to the third count of said indictment; the said third count being as follows: "And the grand jurors, aforesaid, upon their oaths aforesaid, do further present, that Frank Gaughan, on the-

day of July, 1902, and within twelve months, prior to the find- ing of this indictment, in said county, at Clarksburg, did knowingly and unlawfully, exhibit a certain gaming table, commonly called a slot machine, being a table and machine of like kind to A, B, C, and E 0 tables, and faro bank, wheel of fortune, and keno tables, which machine is played by dropping coins into the slot, as indicated by the machine, the coins used being a nickel, a dime, and a quarter, or twenty-five cent piece, and the games played on said machine, are games in which the chances are unequal, all other things being equal, and those unequal chances are in favor of the exhibitor, the said Frank Gaughan, of the said gaming table, the said slot machine, against the peace and dignity of the state." The defendant then entered his plea of not guilty and a jury was empaneled and sworn, and having heard the evidence, returned a verdict of guilty against the defendant as charged in said third count of the indictment. The defendant moved the court to set aside the verdict on the grounds that the same was contrary to the law and the evidence, and grant defendant a new trial, which motion the court overruled and entered judgment for a fine of $200.00, and that defendant be imprisoned in the jail of Harrison county for the period of three months, and that the state recover the costs of her prosecution, to which judgment and rulings of the court the defendant excepted, and obtained from one of the judges of this Court a writ of error and supersedeas.

The facts admitted upon the trial of the case as well as all the evidence for the prosecution and for the defendant, and the instructions asked for and given on behalf of the state and of the defendant, are set out in full in one bill of exceptions taken by the defendant, and signed and made part of the record. The instruction complained of as error, given for the state is as follows: "The court further instructs the jury that if the jury shall believe from the evidence, beyond a reasonable doubt, that the slot machine described in the third count of the indictment is a gaming table, and that the said machine is so constructed that its offers unequal chances to the player and exhibitor, and that the unequal chances are in favor of the exhibitor of said machine, then the said slot machine is a gaming table of like kind and character to A, B, C, E. 0. table, faro bank and keno table." The giving of this instruction, and overruling the motion to set aside the verdict and grant the defendant a new trial, are the only errors assigned by the defendant.

It is contended by counsel that this instruction places an erroneous definition upon the words "a table of like kind as being any machine 'so constructed as it offers unequal chances to the player and exhibitor, ' " that there is no statute in this state forbidding the operation of slot machines. The instruction is within the rule laid down in Wyatt's Case, 6 Eand. 694, and Huff's Case, 14 Grat 648, where it is held, "The distinctive feature in the character of the games called 'A, B, C and 'E O' and 'faro bank, ' is that the chances of the games are unequal, all other things being equal, and those unequal chances are in favor of the exhibitor of the games or tables.' These decisions of the court of appeals of Virginia are under our Constitution and laws binding upon this Court, and we cannot hold inconsistently therewith unless we deliberately determine to overrule that which has been the law since long before the creation of the State of West Virginia. But it is insisted that the offense in the Wyatt Case was a ''Banking game: ' We think the slot machine is essentially a banking game. When the player wins, if it happens that he does win, the money is paid from the machine, the bank fund, the deposits of the previous and less fortunate players. It is played by the machine or the exhibitor on the one side, and any and all players who choose to play on the other side and the chances to win are unequal with the greater number of chances in favor of the machine or exhibitors. These are undisputed facts. It is contended that section 1, chapter 151, is only intended to affect large gambling, where large sums may be won and lost. The statute is clear and explicit. It makes nodistinction in said section, whether a nickel or a thousand dollars is risked in the venture, the principle is the same, and the statute is intended to suppress it.

Counsel for defendant say that "the legislature which met in this State in 1897 and 1899 had bills before them making the keeping or exhibiting of a slot machine in this State, an offense and prescribing a penalty commensurate with the act facts which tend to show at least that the members of the legislatures which met in those years did not think that section 1, of chapter 151, embraced or included the slot machine." If this fact bears upon the question at all, it tends to show that the legislature was satisfied that the statute was already sufficient to suppress all the specific tables mentioned in section 1, and tables of like kind, including the slot machine, hence, further legislation was deemed unnecessary especially in view of the construction placed upon the statute by the Virginia Court of Appeals.

The Honorable John W. Mason, judge of the circuit court of Harrison county, has so ably discussed this subject in. a charge delivered by him to a grand jury of said county, and incorporated in the brief of counsel for the state in this case, that I here adopt his language:

"Whether or not a person exhibiting or using a slot machine may be punished under the laws of this State prohibiting gambling depends wholly upon the fact of whether or not a slot machine is a gambling device. The exhibition or use of slot machines is not specifically prohibited by name in any statute. If prohibited at all, it is because they come within the terms, intent and meaning of the statutes as 'tables of like kind' with those specified in the statute. If the use of slot machines, as they are used, is in fact a game, and being a game, is of such character, as may properly and legally be said to be a game of like kind with the prohibited games named, within the true intent and meaning of the statute creating and defining the offense, then, the power and duty of the courts to punish the keeper or exhibitor of such machines is precisely the same as though the name 'slot machines' was written in the statute. We must therefore look to the statute in relation to offenses of this character, and give to the statute the correct interpretation.

"Chapter 151 of the Code fully covers and includes all gaming and gaming devices, so far as the legislature deemed it expedient to legislate upon the subject. Section one of this chapter provides that 'a person who shall keep or exhibit a gaming table commonly called A, B, C or E 0 table, or faro bank, or keno table or table of like kind under any denomination, whether the game or table be played with cards, dice or otherwise or shall be a partner or concerned in interest in the keeping or exhibiting such table or bank shall be confined in jail not less than two nor more than twelve months, and be fined not less than one hundred nor more than one thousand dollars. Any such table or faro bank, and all money staked or exhibited to allure persons to bet at such table may be seized by order of a court or under the warrant of a justice, ' etc. The other sections of this chapter provide penalties for various forms of gambling. There is no difficulty in executing this law and enforcing the penalties as to the game specified. The trouble is to determine what games properly come within the meaning of the 'tables of like kind' with those named. The statute expressly provides that these tables of 'like kind' may be of any denomination, and that the game or table may be played with cards, dice or otherwise. That is to say, if there be a table used in connection with and as part of the game, it may be played with cards, dice or otherwise, or the game itself may be played with cards, dice or otherwise, and if so played as to make it of like kind with the games prohibited, it is a violation of...