Town of Mount Pleasant v. Chimento

Decision Date10 January 2013
Docket NumberNo. 27197.,27197.
Citation401 S.C. 522,737 S.E.2d 830
PartiesTOWN OF MOUNT PLEASANT, Appellant, v. Robert L. CHIMENTO, Scott Richards, Michael Williamson, Jeremy Brestel and John T. Willis, Respondents.
CourtSouth Carolina Supreme Court

OPINION TEXT STARTS HERE

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Deputy Attorney General Robert D. Cook, Senior Assistant Attorney General C. Havird Jones, Jr., and Assistant Attorney General Mary Frances Jowers, all of Columbia, for Appellant.

Jeffrey Alton Phillips, of Travelers Rest, and William W. Wilkins and Kirsten E. Small, both of Nexsen Pruet, of Greenville, for Respondents.

James W. Sheedy, of Driscoll Sheedy, of Rock Hill, and Thomas C. Goldstein, of Washington, for Amicus Curiae.

Justice PLEICONES.

Respondents were convicted in municipal court of violating S.C.Code Ann. § 16–19–40(a) (2003) which makes it unlawful to “play ... in any house used as a place of gaming ... any game with cards ....” after they were found playing Texas Hold'em and gambling in a residence leased by Nathan Stallings.1 On appeal, the circuit court reversed respondents' convictions finding they were entitled to directed verdicts or, alternatively, that § 16–19–40(a) is unconstitutional. We reverse.

FACTS

Stallings leased a home in Mt. Pleasant where he lived with his fiancé and a roommate. He used an internet social networking site 2 to meet other poker players, and established a regular Sunday night game at his home. He added a regular Wednesday night game after another friend 3 could no longer host those games. People Stallings “met” on this site and their friends were welcome at the games.

Stallings testified that players would buy in to the game for a minimum of $5 and a maximum of $20. They could purchase more chips as needed. Stallings took a “rake” out of the pot in an amount sufficient to cover the cost of the food and drink he provided. If the rake did not cover his expenses, then others (most often the night's winners) would contribute money.

The municipal judge found, based on expert testimony presented by the respondents, that Texas Hold'em is a game of skill. The municipal judge also held that if a game of skill were without the ambit of gaming, then he would acquit the respondents, but that there was no clear indication whether the legislature intended to criminalize only gambling on games of chance. At the hearing, the municipal judge declined to find § 16–19–40 unconstitutional. The circuit court reversed, and the Town appeals that order.

Before this Court, as they did before the lower courts, respondents freely admit they were playing Texas Hold'em, a card game, and do not deny they were betting on this game. All parties agree that the term “gaming” as used in § 16–19–40 is synonymous with gambling.

ISSUES

1) Whether respondents were entitled to directed verdicts because betting money on a game of skill at a residence is not prohibited by § 16–19–40?

2) If respondents are not entitled to directed verdicts, should their convictions have been set aside because § 16–19–40(a) is unconstitutional?

ANALYSIS
A. Directed Verdict

The circuit court held that respondents were entitled to directed verdicts because it is not unlawful to gamble on a game of skill in a residence. We disagree.

Section 16–19–40 is the “modern” version of a statute first enacted in 1802. In its present form, it reads:

§ 16–19–40. Unlawful games and betting.

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open space at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12–21–2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.

Subsection (g) referencing video games was added in 1999. Prior to that amendment, the statute was last amended in 1909 when the penalty section was changed.4 The only other major substantive alteration occurred in 1816, and is discussed in more detail infra.

The statute, with its modern punctuation, provides:

(1) Any person who plays or shall bet on the sides or hands of such as do game at any

• tavern

• inn

• store for the retailing of spirituous liquors

• house used as a place of gaming

• barn

• kitchen

• stable

• other outhouse

• street

• highway

• open wood

• race field

• open place

(2) at

a) any game with cards or dice

b) 1. any gaming table, commonly called A, B, C, or E, O

2. any other gaming table known or distinguished by any other letters or by any figures

c) any roley-poley table

d) rouge et noir

e) any faro bank

f) any other table or bank of the same or like kind under any denomination whatsoever or

g) any licensed gambling machine or device

except at

• billiards

• bowls

• backgammon

• chess

• draughts or

• whist

when there is no betting on any such game of billiards through whist

(3) shall be guilty

and

(4) every person so keeping such

• tavern

• inn

• retail store

• public place or

• house used as a place for gaming or

• such other house

(5) shall be guilty.

The statute's preamble indicates that as originally enacted, the legislation was designed to prohibit gambling in public places:

No. 1786. AN ADDITIONAL ACT for the more effectual prevention of gaming.

IMAGE

IMAGE 1802 S.C. Acts No. 1786.

1. Residence as Place of Gaming

The circuit court agreed with respondents that a residence could not qualify as a “house used as a place of gaming” under § 16–19–40. We disagree.

In 1806, a defendant was convicted of violating the statute after he was indicted for permitting and encouraging persons to play at prohibited games in his dwelling house. On appeal, the sufficiency of the indictment was challenged on the ground the statute did not use the words “permit and encourage,” nor did the indictment allege that the defendant kept his dwelling for gaming purposes or that he allowed gambling on the premises. The appeal was affirmed without a full opinion, but Justice Brevard dissented. It appears that all members of the Court were in agreement that a dwelling house could qualify as a “place kept to accommodate gamesters,” with Justice Brevard expressing his opinion in dicta that the legislature could not have intended the statute to apply to “a casual game being played in a man's home.” State v. Brice, 4 S.C.L. (2 Brev.) 66 (1806). Thus, a residence used as a place for gambling could be a “public house” under the original language of the statute.

In 1816, the gaming statute was amended to “more effectively ... prevent the pernicious practice of gaming” by adding to the places where the playing of the games and/or gambling were prohibited. Specifically, after the term “store for the retailing [of] spirituousliquors,” the phrase “or in any other public house” was stricken and the phrase “or in any house used as a place of gaming, or in any barn, kitchen, stable or other outhouse” substituted. 1816 S.C. Acts No. 2096 p. 26.

In 1823, the Court explained that the legislature's intent in adopting this 1816 amendment was to ensure that gaming in buildings separate from, even if attached to, the “principal or mansion house” were covered by the statute. State v. Faulkener, 13 S.C.L. (2 McCord) 438 (1823). A residence could qualify as a prohibited place under the 1802 version of the statute, Brice, supra, and the 1816 amendment preserved the inclusion of a residence or “mansion-house” as a prohibited location while expanding the definition to include outbuildings typically found on residential property. Faulkener, supra.

In addition to expanding the list of prohibited places, there was another consequence of the 1816 amendment. By altering the prohibition on playing prohibited games from “public house” to “house used as a place of gaming,” the legislature effectively adopted the view of Justice Brevard in his Brice dissent. What was originally a ban on merely playing these games “in a public house” became a ban on playing on these games in a residence or mansion house only when that house was “used as a place of gaming.” Thus, individuals gambling on a casual game in a person's home were no longer subject to prosecution under this statute.

If, however, a dwelling house is being used “as a place of gaming,” then all those playing the game, whether or not they are betting on it, and those present and betting, even if not playing, are guilty of violating § 16–19–40. To the extent that respondents argue that a residence or dwelling cannot be a house within the meaning of this statute, their contention is refuted by Faulkener, supra, and the plain language of the statute.

Given that the parties agree that gaming and gambling are synonyms, then Stallings's house was undeniably being used for gambling on the night of the raid. Moreover, there was sufficient evidence to withstand a directed verdict motion in light of Stallings's own testimony regarding the...

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