State v. Gilmore
| Decision Date | 20 May 1889 |
| Parties | The State v. Gilmore, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.
Reversed.
J. S Brooks, O. T. Knox and Traber & Gibson for appellant.
(1) The table and gambling devices, to-wit: "Chips or checks commonly called poker chips, and cards, commonly called playing cards," mentioned in the indictment, do not fall within the act under which appellant was indicted, for the reason that they are not named in the act, and they cannot be brought within the meaning of the act, under the general words "or any kind of gambling table or gambling device," because where a statute enumerates particular classes of persons or things, followed by general words, the general words will be limited in their meaning and restricted in their operation to objects of like kind with those specified. Nuckalls v. Commonwealth, 32 Gratt. 884 894; State v. Bryant, 90 Mo. 534; City of St. Louis v. Laughlin, 49 Mo. 559; Knox City v. Thompson, 19 Mo.App. 525; St. Louis v. Herthel, 14 Mo.App. 469; Commonwealth v. Wyatt, 6 Rand. (Va.) 694, 702; Ritte v. Commonwealth, 18 B. Mon. 35, 39, 40; People v. Reilly, 15 N.W. 521; Regina v. Whitnash, 7 Barn. & Cres. 596; Sedg. Stat. & Const. Law, p. 423; Bishop Stat. Crimes (2 Ed.) secs. 245, 864, 866; Chitty on Contracts (10 Am. Ed.) t. p. 90; Broom's Leg. Max. (6 Am. Ed.) s. p. 625; State v. Hawkins, 15 Ark. 257; Stith v. State, 13 Ark. 680. (2) The words of the act, "or on the side, or against the keeper thereof," are intended to define the kind of gambling device and game of chance contemplated by the act, and must be construed in conjunction with the other clauses of the act, the rule of construction being, that all the words of a statute must be construed in such a way as to give them effect, if possible, and in connection with the words that accompany them. State v. Hays, 78 Mo. 60; Latham v. Agnew, 70 Mo. 48; State v. Diveling, 66 Mo. 375; Neenan v. Smith, 50 Mo 525; St. Louis v. Herthel, 14 Mo.App. 471; Hicks v. Jamison, 10 Mo.App. 35; State v. Bogardus, 4 Mo.App. 215; Railroad v. Railroad, 2 Mo.App. 69; Cooley's Const. Lim. (4 Ed.) p. 223; Bishop Stat. Crimes (2 Ed.) secs. 80-82. (3) This court will take judicial notice of the difference between cards commonly called playing cards and poker chips, and the devices mentioned by name in the act. But if not, then the burden of proof was on the state to show that the devices mentioned in the indictment were ejusdem generis with those mentioned in the act, for there is no presumption that they are of the same class. No person is to be made subject to a penal statute by presumption or implication. Nuckalls v. Commonwealth, 32 Gratt. 884, 887; State v. Bryant, 90 Mo. 534; State v. Russell, 17 Mo.App. 16; State v. Sellner, 17 Mo.App. 39; State v. Bruner, 17 Mo.App. 274; Commonwealth v. Emmons, 98 Mass. 6; People v. Millard, 53 Mich. 63; Bishop Stat. Crimes, sec. 889; State v. Hawkins, 15 Ark. 259. (4) The statute being penal and criminal must be strictly construed in those parts which are against defendant, and liberally in those parts which are in his favor; and when doubts arise, they must weigh only in favor of the accused. State v. Bryant, 90 Mo. 534; Manz v. Railroad, 87 Mo. 278; Fusz v. Spaunhorst, 67 Mo. 256; Howell v. Stewart, 54 Mo. 400; United States v. Wiltberger, 5 Wheat. 76; Bishop Stat. Crimes (2 Ed.) secs. 193, 194, 227. (5) The evidence did not show that defendant set up the device, but that others did it. So that if he committed any crime, it was that of permitting a gambling device to be set up on premises occupied by him. R. S. 1879, sec. 1549; Commonwealth v. Burns, 4 J. J. Marsh. 177.
John M. Wood, Attorney General, for the State.
(1) Cards have been repeatedly decided by this court to be gambling devices, and tables at which the same were played gambling tables when money or property is bet on the result of a game or when money or property is played for, and when so used constitute gambling devices. And though the principles of the game may be essentially different from those specially mentioned by the statute, if the devices when used in the manner above stated "are capable, when operated upon, to produce games of chance," they will be included within the general clause of the statute as being of a kindred nature and similar in kind to those mentioned. State v. Ames, 1 Mo. 524; State v. Purdon, 3 Mo. 114; State v. Ellis, 4 Mo. 474; Schropshire v. Glascock, 4 Mo. 536; State v. Eubanks, 5 Mo. 450; State v. Mitchell, 6 Mo. 147; State v. Bates, 10 Mo. 109; State v. O'Blenis, 12 Mo. 311; State v. Hereford, 19 Mo. 377; State v. Nelson, 19 Mo. 393; State v. Skaggs, 33 Mo. 92; McCoy v. Zane, 65 Mo. 11. (2) It is not necessary, as insisted by appellant, that defendant should have participated in the game. If he sets up or keeps any table or gambling device, etc., * * * and either induces, entices or permits any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played, he is guilty under the statute. "To set up or keep or carry on * * * the gambling device * * * is an offense a great deal more injurious to the public morals than the act of betting upon the gambling devices so set up or conducted." State v. O'Blennis, 12 Mo. 311; State v. Fulton, 19 Mo. 680.
OPINION
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 Revised Statutes, 1879, section 1547, as amended by the act approved March 9, 1881, (Acts, 1881, p. 112,) 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 gaming 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 is a gambling device within the meaning of Revised Statutes, 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...
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