State v. Terry

• Decision Date: 04 May 1935
• Docket Number: 32317.
• Citation: 141 Kan. 922,44 P.2d 258
• Parties: STATE v. TERRY et al.
• Court: Kansas Supreme Court

44 P.2d 258

141 Kan. 922

STATE v. TERRY et al.

No. 32317.

Supreme Court of Kansas

May 4, 1935

Syllabus by the Court.

Five-card stud poker held not "confidence game" or "swindle," nor "any such game" as the confidence game or swindle known as three-card monte, the dealing, playing, or practicing of which is a felony (Rev St. 1923, 21--930).

Five-card stud poker is not "any such game, play, or practice" as "the confidence game or swindle known as three-card monte," the dealing, playing, or practicing of which is made a felony by R. S. 21--930.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Proceeding by the State against Bruce Terry and others. From a ruling and judgment sustaining a motion to quash information, the State appeals.

Roland Boynton, Atty. Gen., and John W. Wood, Co. Atty., and James B. Nash, Deputy Co. Atty., both of Wichita, for the State.

Tom Harley, Jr., of Wichita, for appellee Bruce Terry.

H. C Castor, Victor J. Rogers, W. A. Blake, and A. M. Buzzi, all of Wichita, for all other appellees.

HARVEY Justice.

This is an appeal by the state from a ruling and judgment of the district court sustaining a motion to quash an information in a criminal action. The information was drawn under R. S 21--930, and omitting formal opening and closing reads as follows: "*** That Bruce Terry, Cale (Curley) Bray and Myrel Thomas Farmer late of said county of Sedgwick, at and within the county of Sedgwick, in the state of Kansas aforesaid, and within the jurisdiction of this court on or about the 1st day of August, A. D. 1933, did then and there unlawfully, feloniously, wilfully, and intentionally, deal play, and practice a confidence game or swindle known as Five Card Stud Poker, with the intent and purpose of them, the said Bruce Terry, Cale (Curley) Bray, and Myrel Thomas Farmer, to cheat, swindle, and defraud one Sadie Wolf, and that by means and use of the aforesaid game, to wit: Five Card Stud Poker, they, the said Bruce Terry, Cale (Curley) Bray, and Myrel Thomas Farmer, did then and there deal, play, and practice said game known as Five Card Stud Poker, and did then and there swindle, cheat, and defraud the said Sadie Wolf out of the sum of Two Hundred Seventy Five ($275.00) Dollars. ***"

The statute in question reads: "Whoever shall in this state deal, play or practice, or be in any manner accessory to the dealing, playing or practicing of the confidence game or swindle known as three-card monte, or of any such game, play or practice, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not to exceed five thousand dollars, and by confinement in the penitentiary not less than two nor more than five years." R. S. 21--930.

The question presented is whether the information states an offense under this statute; or, more definitely, whether five-card stud poker is "any such game, play or practice" as "the confidence game or swindle known as three-card monte." Three-card monte is defined:

"A game of Mexican origin in which three cards, previously shown and named, are dexterously thrown on the table by a gambler, and the victim is induced to bet he can pick out one previously designated." Webster's Dictionary.

"A sleight of hand game or trick played with three cards, one of which is usually a court-card. The performer throws the cards face down upon a table in such a manner as to deceive the eye of the onlooker, who is induced to bet that he can pick out the same cards. Called in England 'three-card trick."' Standard Dictionary.

"A gambling game, of Mexican origin, played with three cards, of which one is usually a court-card. By skilful manipulation, the cards are so thrown on the table, face down, as to deceive the eye of the manipulator's opponent, who bets on the position of one of the cards, usually the court-card." Century Dictionary.

"A sleight-of-hand game or trick played with three cards. While as generally known and understood, it has been said to be a confidence game, on the other hand, it has been held that the game is not necessarily a cheating game, but on the contrary, that it is fundamentally a game of skill, he whose part it is to indicate the stated card pitting his quickness of eye against the quickness of hand of him who manipulates the cards." 62 C. J. 946.

If of Mexican origin, it has spread over a wide area. In France it is known as "Bonneteau" and has been declared an "escroquerie"; that is, a swindle, or a cheating swindling game. We are told that in Belgium it is held exclusively a game of skill, and not a fraud or cheat if played according to the rules. In England (Rex v. Governor of Brixton Prison, [1912] 3 K. B. 568), passing on the extradition of persons charged with having played the game in Norway, it was spoken of as "the three-card trick." The headnote reads:

"Where two confederates are engaged in what is known as the three card trick--a game in which one player, having shewn three cards, places them face downwards and rapidly shifts their relative positions, and then the other player has to indicate the position of a particular card--the fact that they fraudulently pretend to be strangers and when playing together arrange that the one who has to point out the particular card shall win, with the view of inducing the prosecutor to play, is not a 'fraud or unlawful device or ill practice in playing at or with cards' within the meaning of s. 17 of the Gaming Act, 1845, so as to support a charge of obtaining from the prosecutor by false pretenses money won from him at the game.

"Reg. v. Bailey and Others (1850) 4 Cox, C. C. 390, followed."

This holding was followed by the Canadian court in Rex v. Rosen and Lavoie, 61 D. L. R. 500. The headnote reads: "The element of fraud and cheating is not essential to the game of 'Three-card Monte' and the game if played according to its rules is not an offence under sec. 442 of the Criminal Code."

In this...