State v. Stroupe

Decision Date12 June 1953
Docket NumberNo. 506,506
CourtNorth Carolina Supreme Court
PartiesSTATE, v. STROUPE et al.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Robert L. Emanuel, Member of Staff, Raleigh, for the State.

Thomas J. Wilson, Lincolnton, for defendants, appellants.

PARKER, Justice.

The defendants assign as Error No. One the refusal of the trial court to grant their motion for judgment of nonsuit made at the close of the State's evidence, and assign as Error No. Two the refusal of the trial court to grant their motion for judgment of nonsuit renewed at the close of all the evidence.

The defendants contend that they were playing 'Negro Pool'; that 'Negro Pool' is a game of skill and not of chance, and that G.S. § 14-292 has no application to games of skill. In their brief they state the question involved as to whether their motion for nonsuit should have been allowed 'hinges on whether the game as played by the defendants was one of chance or one of skill.'

G.S. § 14-292. 'Gambling.--If any person play at any game of chance at which any money, property or other thing of value is bet, whether the same be in stake or not, both those who play and those who bet thereon shall be guilty of a misdemeanor.'

In State v. Gupton, 30 N.C. 271 this Court said: 'The universal acceptation of 'a game of chance' is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance.' This was one of the first cases to discuss in detail the meaning of the phrase 'game of chance.' 135 A.L.R.Anno. 109. This definition of the illustrious Chief Justice Ruffin has become classic for almost its exact words have been used to define 'game of chance' in 24 Am.Jur., Gaming and Prize Contests, Sec. 18; in 38 C.J.S., Gaming, § 1, page 35, and 60 A.L.R.Anno. 343. In the Gupton case the Court gives as illustrations of games of chance, the game of dice in which the throw of the dice regulates the play or the hand at cards depending upon a dealing with the face down; and as illustrations of games of skill, chess, draughts or chequers, billiards, bowls and quoits. The Court in this case held that the game of tenpins is not a game of chance.

In State v. Bishop, 30 N.C. 266, the jury found 'shuffleboard' was not a game of chance. In State v. King, 113 N.C. 631, 18 S.E. 169, tenpins again was held not a game of chance. In State v. DeBoy, 117 N.C. 702, 23 S.E. 167, 168, the Court said this decision has 'no application to the longprevailing custom of 'shooting for beef,' shooting at turkeys, and other similar trials of skill.' These decisions rest upon the rationale that superior knowledge and attention, or superior strength, agility and practice gain the victory, and little or nothing is left to chance. It is true an unseen gravel in the way may deflect a ball in tenpins or bowls or a sudden gust of wind a bullet, but if these incidents are sufficient to make tenpins and bowls or shooting at beef a game of chance, there would be no other games but those of chance. State v. Gupton, supra. See also State v. Abbott, 218 N.C. 470, at pages 479-480, 11 S.E.2d 539.

In State v. Taylor, 111 N.C. 680, 16 S.E. 168, it was held that a game of cards was a game of chance. In State v. De Boy, supra, the Court said 'if several parties each put up a piece of money, and then decide by throwing dice who shall have the aggregate sum or 'pool,' this is, unquestionably, a game of chance.' Cases like these rest upon the basis that these games are decided not by judgment, practice, skill or adroitness, but by a turn of a card or the cast of the dice.

In many courts questions have arisen as to the amount of chance that must be involved in the result of a game before it becomes one of chance, or the amount of skill before the game becomes one of skill, or the ratio between chance and skill in a mixed game of chance and skill. 'In the absence of statutes and other indicia to the contrary, most courts have reasoned that there are few games, if any, which consist purely of chance or skill, and that therefore a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance.' 135 A.L.R. Anno. 113. In this annotation many definitions of 'games of chance' by many courts are given.

In 135 A.L.R.Anno. 121 it is said: 'There is considerable authority that the game of billiards is a game of skill and not a game of chance as the latter term is used in the popular sense to mean a game in which the result depends upon chance as distinguished from skill or certainty.' Cases from various states are cited, and among them is the obiter dictum in State v. Gupton, supra. In the same Anno. p. 123 it is said: 'The game of pool, of which there are various kinds, has been held to be a game of skill as distinguished from a game of chance, as those terms are used in the popular sense of referring to the elements of skill and chance in the game;' and several cases are cited to support the statement. In Scott v. jackson (1911) 30 NZLR, 1025, p. 1043, Williams, J., said, as quoted in 135 A.L.R.Anno. 123: 'In ordinary language billiards and pool are not games of chance. If any one thinks they are, let him go and play them for a stake, and he will promptly discover his error.'

'In U. S. v. Concepcion (1917) 37 Philippine 48 (quoted in 135 A.L.R.Anno. p. 124) the game of 'nones y pares,' played on a billiard table, at which money was bet, was held to be a game of chance. * * * The game was described by one witness as follows: The player places himself on the left hand side of the head of the billiard table. Two balls are placed at a certain distance from the cushion of the left side. The player impels one of these balls against the other and the latter is driven against the upper opposite cushion and, on returning toward the center of the table, touches little pegs. If an even number of these fall down the 'even' win; and if an odd number, the 'odds' win. The player always bets on the 'even,' and others bet on the 'odds."'

There are many kinds of pool, 135 A.L.R.Anno. 123. It would seem that the test of the character of any kind of a game of pool as to whether it is a game of chance or a game of skill is not whether it contains an element of chance or an element of skill, but which of these is the dominating element that determines the result of the game, to be found from the facts of each particular kind of game. Or to speak alternatively, whether or not the element of chance is present in such a manner as to thwart the exercise of skill or judgment. State v. Gupton, supra, and 24 Am.Jur., Gaming and Prize Contests, Sec. 18. 'It is the character of the game, and not the skill or want of skill of the player, which determines whether the game is one of chance or skill. A game of chance does not cease to be such because it calls for the exercise of skill, nor does a game of skill cease to be such because at times its result is determined by some unforeseen accident.' 38 C.J.S., Gaming, § 1, page 37.

This case is the kind of pool designated as 'Negro Pool.' A flat board with boles in it is placed at one end of the table. A picture of two Negroes is at one hole; a picture of one Negro at another hole. The holes are numbered. Each player draws a pill bearing a number from a bottle--that is mere chance. To win, the player must select a numbered ball on the table, and shoot that ball into a hole bearing a number, the total of which numbers must equal the number on the pill; or the player may win, if he shoots his ball into the hole of one Negro, and may win double if he shoots his ball into the hole of the two Negroes. The number of the pill drawn by chance from the bottle determines the number of combinations the player can make to win, and it would seem, for example, that No. 16 would make available more combinations than No. 3. The cue ball strikes his numbered ball, and shoots it up on the board containing the numbers. It is a fact of common and general knowledge that a skilled and experienced player of billiards or pool by striking his cue ball on the top or bottom, or by putting 'English' on it, can make the cue ball follow the struck ball, stop when it strikes it, or move back in reverse after striking it, so as to make his next shot easier--that manipulation of the cue ball is what in large measure makes straight billiards and straight pool games of skill. It is well known that billiard and pool tables are flat, and any unevenness on the surface of the table will deflect the course of the cue ball or shot ball. It would seem that when in 'Negro Pool' the cue ball shoots the numbered ball up on the board with numbers and picutres on it that the hole the ball goes into up on the board--whether the hole with the picture of one Negro, or the hole with the picute of two Negroes so as to win double, or the hole with a number--is determined by mere luck or chance or fortuitous accident, and is not dependent on the skill, experience or judgment of the player.

The evidence for the State discloses that Walker and McMahan were playing 'Negro Pool' and betting $5 and $8 a game; that beginning about 7:40 p. m. Chandler and Stroupe played about five games of 'Negro Pool' betting the same amount on each game, and that Stroupe and Chandler bet on the games played by Walker and Ramsey. Chandler was indicted as L. C. Chandler. The evidence refers to him as Jim. No point has been made that Jim Chandler is not L. C. Chandler, and manifestly, there is no uncertainty that Jim Chandler is L. C. Chandler.

Considering the evidence in the light most favorable to the State, and giving to it the benefit of every reasonable inference to be drawn therefrom, there was fufficient evidence to carry the case to the jury that 'Negro Pool' is a...

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