State v. Gilmore
| Decision Date | 20 May 1889 |
| Citation | 98 Mo. 206,11 S.W. 620 |
| Parties | STATE v. GILMORE. |
| Court | Missouri Supreme Court |
Rev. St. Mo. 1879, § 1547, as amended by act March 9, 1881, provides that "every person who shall set up or keep any table or gambling device commonly called `A, B, C,' `faro-bank,' `E, O,' `roulette,' `equality,' `keno,' or any kind of gambling table or gambling device," adapted for playing any game of chance for money or property, and shall permit any person to bet or play at or on such device, or game played by means thereof, or on the side or against the keeper thereof, shall be imprisoned in the penitentiary for not less than two nor more than five years, or in the county jail for not less than six nor more than twelve months. Section 1548 provides a penalty for persons betting on any device prohibited by section 1547, or "any other gambling device;" and section 1549 provides the punishment for permitting one's premises to be used for gambling by means of any device; and subsequent sections provide for the summary seizure, confiscation, and destruction by fire of the devices prohibited by section 1547. By the original act (1825) the keepers of the devices mentioned in section 1547 were made liable to punishment by stripes, and the pillory also. Held, that under the rule ejusdem generis, and as the words "on the side or against the keeper thereof," in section 1547, and the words "other gambling device," in section 1548, would otherwise be without effect, and considering the stringent and summary proceedings for the seizure and destruction of the devices mentioned in section 1547, and the severity of the penalty, ordinary playing-cards and poker-chips are not a gambling device, within the meaning of section 1547.
Appeal from criminal court of Jackson county; HENRY P. WHITE, Judge.
J. S. Brooks, O. T. Knox, and Traber & Gibson, for appellant. John M. Wood, Atty. Gen., for the State.
The charge in the indictment in this case is that the defendant "did unlawfully and feloniously set up and keep a certain table and gambling device, to-wit, a certain table and chips or checks commonly called `poker-chips,' and certain cards commonly called `playing-cards,' all the same being gambling devices, adapted, devised, and designed for the purpose of playing a certain game of chance commonly called `poker,' for money and property, and did then and there unlawfully and feloniously entice, induce, and permit divers persons, whose names are unknown, to play at and upon said table and gambling device." On this indictment he was tried, convicted, and sentenced to imprisonment in the county jail for six months, under the provisions of section 1547, Rev. St. 1879, as amended by the act approved March 9, 1881, (Sess. Acts 1881,) which reads as follows: "Every person who shall set up or keep any table or gambling device commonly called `A, B, C,' `faro-bank,' `E, O,' `roulette,' `equality,' `keno,' or any kind of gambling table or gambling device, adapted devised, and designed for the purpose of playing any game of chance, for money or property, and shall induce, entice, or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device, or on the side or against the keeper thereof, shall, on conviction, be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for a term not less than two nor more than five years, or by imprisonment in the county jail for a term not less than six nor more than twelve months."
The evidence tended to show that appellant was the proprietor of a saloon in Kansas City; that he furnished to persons who came to his saloon cards and chips or checks; that persons played in his saloon with the cards and chips, upon tables, such games as seven-up, euchre, and poker for drinks and money; that the tables used were the ordinary tables usually kept in saloons upon which to place lunches, and wine and beer glasses filled with wine and beer to drink, by persons who desired to sit while drinking in appellant's saloon; that the games were played in the same room where his bar stood, and not in another room; that appellant did not participate in such games, nor play with nor bet against any of the players; that the players bet their money against each other, and not on the side of or against appellant, who took no part in the games, either directly or indirectly; that the cards and chips used were handed out from behind the bar only to such persons as requested them; that, after the cards and chips were thus given out, appellant had nothing whatever to do with them till they were returned to him; that appellant did not have the care, use, or management of the cards or chips, or of the games played, and had nothing to do with the cards or chips further than to give them to such persons as called for them, after which such persons alone had the use, care, and management thereof; that he would sell the chips to the players at five cents each, when they commenced the game, and when one or all quit he would redeem the chips which each one had at that rate; that there was a "take-off" in every game of so many chips for the highest or best hand, — as, for example, for "aces up" there was a "take-off" of one chip; for "threes," two chips, and so on; for "fulls," "flushes," etc., so many chips were taken off. These take-off chips were returned to the bar without redemption.
It will not be necessary to notice the instructions in detail. The court, in substance, instructed the jury that an ordinary pack of playing cards and poker-chips are a gambling device, within the meaning of section 1547, supra, provided such cards and chips are used for the purpose of playing any game of chance for money or property. Whether this construction of the law is correct is the controlling question in the case. The qualification contained in the proviso cannot have the effect of bringing the cards and chips mentioned within the meaning of said section; for, while the device therein prohibited must be adapted, devised, and designed for playing a game of chance for money or property, the offense of him who sets up or keeps the prohibited device of this section is the same whether he permits others to bet money or...
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State v. Wade
...l. c. 415, 87 S.W. 470, Judge Fox, in passing upon the same question approvingly quotes this language from Judge Gantt. In State v. Gilmore, 98 Mo. 206, 11 S.W. 620, this held that a pack of playing cards, although used for playing games for money or property, was not a gambling device with......
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State v. Wade
...cit. 422, 87 S. W. 470, Judge Fox, in passing upon the same question, approvingly quotes this language from Judge Gantt. In State v. Gilmore, 98 Mo. 206, 11 S. W. 620, this court held that a pack of playing cards, although used for playing games for money or property was not a gambling devi......
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State v. Young
...prohibited by section 4750, Revised Statutes 1909, nor are they ejusdem generis with those devices. State v. Bryant, 90 Mo. 534; State v. Gilmore, 98 Mo. 206; State Elchman, 184 Mo. 193; State v. Koock, 202 Mo. 235. (2) The verification by the prosecuting attorney in court was not objected ......
- State v. Gilmore