Thrower v. State
| Decision Date | 26 June 1903 |
| Citation | 45 S.E. 126,117 Ga. 753 |
| Parties | THROWER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. At common law keeping a gaming house was an offense, although no form of gambling was then punishable, and gaming contracts were enforced by the courts.
2. Prior to the first Penal Code, this common-law offense of keeping a gaming house was punished in Georgia.
3. The same offense is defined by Pen. Code 1895, § 398, which makes keeping a gaming house a misdemeanor, without reference to the character of the games there carried on.
4. "Betting on a horse race is gaming within the meaning of the Code."
5. One who maintains a house for the purpose of such gaming is guilty of keeping a gaming house, even though betting on a horse race is not prohibited by statute, and though the race be run in a different state.
6. The statute is not aimed at the games or the players, but against keeping a house where gaming of any sort is encouraged, and because of its tendency to corrupt morals and to ruin fortunes.
Error from Superior Court, Fulton County; L. S. Roan, Judge.
Montgomery Thrower was convicted of keeping a gambling house, and brings error. Affirmed.
Arnold & Arnold, for plaintiff in error.
C. D Hill, Sol. Gen., and L. W. Rucker, for the State.
The defendant was indicted under Pen. Code 1895, § 398, for "keeping a gaming house," and upon the trial was found guilty. It appears that he was the proprietor of what is called a "turf exchange," at which large numbers of persons daily congregated for the purpose of betting on horse races run in distant states, but reported at the exchange by telegraphic dispatches. The odds against every horse in any race were posted on a blackboard in the room. While not given in detail, we understand, from what is stated as to the method of posting, that the following would illustrate what is placed on the board: 2 to 1 against horse A.; 2 to 1 against horse B.; 3 to 1 against horse C.; 3 to 1 against horse D.; 4 to 1 against horse E. Persons desiring to bet would select a horse, pay $1, and receive a ticket showing the sum to which he would be entitled in case that horse won. The proprietor was, in effect, a bookmaker, and backed the field, being bound to win, if he could get takers enough to make the book on each race, and could keep the amount of his heaviest odds less than the total stakes put up by the individual bettors in each race. 3 Ency. Brit. 618. The details would be changed because single "books" were not made, but the principle would probably be the same where money bets were made or tickets sold. In the instance above given he received $5. His heaviest loss could be only $4, and he might lose only $2. At any rate, one of the witnesses had lost $7,000 at this exchange, and many others smaller amounts. The evidence is that many attended, and the betting was constant, those backing the successful horse winning in each race, often heavy odds, but the greater number, of course, being bound to lose, and the exchange to gain, these gains being sure and certain if only takers enough were to be had, and all the odds sold. This being an element of uncertainty against the proprietor, it was desirable to have a clearing house or place in which to gather a crowd, and the "turf exchange" is the modern expedient to secure that result. But the plaintiff in error insists that he was not keeping a gaming house, because no game was played. The races occurred in distant states and, betting on a horse race not being itself a criminal offense, it cannot be an offense to maintain a place where such betting was allowed.
The act, as published in Cobb's Digest, p. 815, and in the Code of 1863, § 4423, is subdivided by a semicolon, and makes even clearer what is apparent upon an investigation of the statute as now published in Pen.
Code 1895, § 398. It creates three separate offenses: (1) Whoever keeps a gaming house is guilty of a misdemeanor. (2) If he does not keep and control the house, but merely permits it to be used by other persons as a place where betting on games or devices is carried on, he is guilty of a misdemeanor. (3) If he knowingly rents the house to be used for such purpose, he is guilty of a misdemeanor. And in section 392 it is further provided that, if he keeps a house to the encouragement of gaming, he is guilty. Keeping a gaming house is a separate, well-defined offense, and entirely independent of the criminality of the betting carried on therein. The statute is aimed at the place, not at the players, nor at the game, nor at the subject-matter of the wager. At common-law keeping a gaming house was an offense before any sort of game was prohibited, and was punished when gaming was not even against public policy, when the courts recognized such contracts, and by solemn judgment made the loser pay his bet. But to maintain a place for the purpose of inducing men to gather and game was a common nuisance, because of its tendency to corrupt morals and ruin fortunes. United States v. Dixon, 4 Cranch, C. C. 107, Fed. Cas. No. 14,970. The game might be harmless, or, if in private, only the immediate actors would be affected; but when the public were invited, when there were always present those ready and anxious to stake, when the gains of one excited others to participate, when the pride of public success stimulated the winner, and the loser attempted to hide the mortification of defeat by a bold front until the last coin was gone, the law was bound to interfere. The English rule and our own statute are both based on the recognition of the cumulative evil which may inhere in a multiplicity of acts not themselves criminal. Idleness is not a crime, but an aggregation of innocent idleness may culminate in the crime of vagrancy. Pen. Code 1895, § 453. To allow liquor to be drunk on one's premises on Sunday is not made an offense, but to keep a place where persons may congregate for that purpose is to convert the building into a tippling house. The noncriminality of the drinking does not save the house keeper. Id. § 390. A single act of noise may be innocent, but, continued too long, the harmless disorder makes the owner the keeper of a disorderly house. Id. § 392. Betting on a game or an event not made penal is not an offense, but to keep a house for that very purpose will ripen into a crime. Keeping a gaming house, a tippling house, or a disorderly house are all made offenses by the Penal Code, because, while acts done therein are not crimes, they lead to crime. Such places are hotbeds; and the maintenance thereof is prohibited in pursuance of the preventive policy of the law, in an endeavor to save the idle and the dissolute from themselves, and to prevent the misery and loss which wait on those who frequent such places. The wholesale gaming and the evil consequences arising from the keeping of a "turf exchange" are as great, if not greater, than those flowing from the maintenance of any other gaming place; and the proprietor can only escape the consequences by showing that his is not a gaming house within the meaning of the statute.
The words "wagering," "playing," "gaming," and "betting," though each having a meaning...
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