James v. State

63 Md. 242, 1885 Md. LEXIS 85

Opinions

Footnotes

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* Bryan, J.,

delivered the following opinion, in which Ritchie, J., concurred:

The appellants were indicted in the Criminal Court for violating the statutes against gaming. The indictment contained six counts. The first count charged that they “did keep a certain gaming table for gambling then and there, other than a billiard table, the said gaming table being then and there a contrivance at which money was then and there bet and wagered on horse races.” The second and third counts charged them with “ managing and having an interest in, and in the profits of” the same kind of gaming table. The fourth and fifth counts charged them with keeping and managing a room for gambling. The sixth count charged that they being the occupants of a certain room, “ did knowingly permit a gaming table, other than a billiard table, to be then and there kept therein:, for gambling thereat.”

At the trial of the case, the State offered to prove that the appellants, at their rooms in the City of Baltimore, sold cards or tickets to purchasers of the various pools, known as ’“Auction,” “Mutual” and “ Combination ” pools, which were described as follows:

The “Auction pools ” were conducted according to the system following:

A certain number of horses is entered to run at a certain race, to be held at a certain time and place. Any person desiring to invest money in a pool or race, offers to the auctioneer a certain amount of money for the choice or selection of a horse, which he supposes will be the winner of the race. A number of bids may be offered for the first choice. The person offering the highest amount obtains the first choice or selection of the horse which he supposes will be the winner, which horse he then and there names ; the amount then and there offered for the first choice, is then and there deposited in the hands of the parties conducting the pools. It often occurs, that after several different choices are selected by the persons bidding, there remains a number of horses undisposed of — these are called “ the field.” These are taken together by the person offering and depositing the highest amount for the same. The amount so deposited for each choice, and the field, (if there he a field,) are added together, and the total constitutes ■what is commonly called “ the pool.” Each person so depositing his money on his choice or on the field, receives a card or receipt for the same, showing the horse or (if on the field) the horses selected, the amount so deposited, and the total amount in the pool. The money in the pool (less the commission of five per cent, to the person or persons conducting the pool) is paid to the person having selected the winning horse in the race, upon presentation of the card or receipt aforesaid, to the person conducting the pool.

The “ Mutual pools ” are conducted as follows:

A list of the horses in a certain race is placed upon a hlack-hoard in the open view of the bidders, and to each horse, on the left of their names, is attached a number, and to the right of their names is left an open space to show the number of times the horse has been chosen. A person wishing to invest money on a certain horse, purchases of the person having charge of the pool, a card or receipt, commonly called a ticket, stating at the time the horse upon which he wishes to purchase the card or ticket, which ticket has on its face a number which corresponds with the number attached to the name of the horse on the hlack-board. The number is used merely to facilitate business, and has no other significance.

When the purchase has been made, the pool indicates the whole number of cards, receipts or tickets sold or taken upon the said black-board, placed in the open view, and this is correctly marked from time to time, as each ticket or card is purchased or taken. When the pool is closed, the total amount invested on the different horses is added together, and is seen on the blackboard aforesaid, and is called the total, and the total constitutes that pool. The total, less the commission of five per cent, to the person conducting the pool, is divided into equal sums and paid to the persons having selected, taken or purchased the cards or tickets on the winning horse, upon presentation of these cards or tickets. Any number of persons, acting separately, may choose the same or any horse in the race, and the amount paid for each card or ticket is the same. The number of cards or tickets sold or taken on each horse is-unlimited. Any person may buy or take as many cards- or tickets on each horse, or upon any horses in the race,, as he chooses.

The “ Combination pools ” are somewhat similar to the- “ Mutuals.” In the Combination pools, there must be-three contests or races. The person speculating in Combination pools, must select his choice in the races, the same as is done in the Mutual; but in order to win, he must have selected the winner in each of the three races. If any one of the horses chosen by him fails, he wins nothing. Any number of persons may select the same combination, and if any particular combination wins, the persons having selected that combination, are entitled to the whole amount, (less the five per cent, commission to the persons conducting the pool,) to be equally divided upon producing their cards or tickets. The sum deposited on each selection of a combination is uniform. Persons purchasing these combination tickets may decline to name any combination, and purchase the field, and should all the-combinations fail, the pool, less the commission aforesaid,, is divided among those holding tickets on the field.

The appellants objected to the admissibility of the evidence, but the Court overruled the objection, and allowed the evidence to be given. The question for us is whether these facts, supposing them to be proved to tbe satisfaction of the jury, tended to shew that the appellants were guilty of any of the offences charged in the indictment. The Act of 1882, ch. 271, prescribes severe penalties for these offences; but we must look also to the sections, under the head of gaming in the thirtieth Article of the Code, in order to ascertain the precise nature of the acts-which are made criminal by the law. The fifty-seventh section declares that any kind of table, except a billiard table, at which any game of chance shall he played for money, or any other thing, shall he deemed a gaming table. And to prevent the defeat of the law by evasion or stratagem, the sixty-second section was enacted. It is in these words: “All games, devices and contrivances at which money or any other thing shall he bet or wagered, shall he deemed a gaming table within the meaning of the preceding sections.” If we should give a merely verbal interpretation to these sections; or if we should construe them in an astute and technical spirit, we would defeat their meaning. If, for instance, taking the very words of the sixty-second section, we should say that it enacts that all games at which money or any other thing shall he bet are gaming tables; horse races are such games; and therefore horse races are gaming tables, we should arrive at a result manifestly ridiculous, and very far distant from any intention which could he attributed to the Legislature. The safe and just rule requires us to disregard verbal subtleties, and to seek the meaning of the statute law from a consideration of all its parts, and a. comparison of it with other legislation affecting the matter in hand. We think it evident from the fifty-seventh section that it is the playing of a game of chance which impresses on a gaming table its criminal character. The-game of chance is the obnoxious transaction which the statute seeks to prevent. If this can he prevented, the objects of the statute will he fully attained. But it was anticipated that the ingenuity of offenders would invent various subterfuges to evade the law, and therefore the sixty-second section was enacted, to the intent that ne trick or stratagem should avail for this purpose. This, section is in harmony with the fifty-seventh, and is in furtherance of the same object. It was not intended to-change or modify in any respect the test by which the-criminal character of a gaming table was to he ascertained- That test was to remain as already enacted; that is to say, it was the playing of a game of chance for money o.r any other thing. The fifty-sixth section provides as follows: '“No person shall keep any gaming table, or any house, vessel or place, on land or water, for the purpose of gambling.” The fifty-ninth section, both in its original form •and as amended by the Act of 1882, ch. 271, makes it penal to keep any “ gaming table, or other place of gambling.” These sections regard a gaming table as a place •of gambling, and provide that neither it nor any other place, should be kept for this purpose. We see from these sections what conduct the Legislature intended to describe by the term “gambling.” It was playing at that kind of •a game which gave a criminal character to the table at which it was played ; that is to say, it was playing any .game of chance for money, or any other thing. This was the conduct which brought down punishment upon those who kept a table or other place where it was permitted. If we could suppose that the term “ gambling ” included •other games besides those which were forbidden at a gaming table, we should reach this singular anomaly; we should hold that the Legislature intended to permit some games at a gaming table which were forbidden in other places. But nothing is more clear than that the Legislature intended to visit with punishment the keeping of •every place where such games were played as were obnoxious to its censure.

We are now prepared to examine the evidence which was admitted in the Criminal Court. If the persons, who purchased the tickets in the various pools, were playing ■at a game of chance, then the appellants were keeping a gaming table, and a place for gambling. The object -of purchasing these tickets was to wager money on certain horse races. No ordinary interpretation of language would describe their conduct as the playing-of a game. When a man hazards his money on the rise or fall of prices of stocks, cotton, grain, or other commodities, it-cannot in the proper use of language be said that he is-playing at a game of chance, nor can the place where such ventures are made and registered he designated as a gaming table. Bets are made, and money hazarded on many of the uncertainties and contingencies of life, hut in the common use of language, these transactions are not called games of chance. The contingency on which these appellants wagered their money was the result of a race; in one event they would win, in another they would lose. It may he said that many elements of uncertainty were involved in the wager by reason of the various combinations which might he made in the pools. But nevertheless the thing which was to determine gain or loss was the success of the horses chosen. If by any singular subtlety of discourse a horse race could he shewn to he a game of' chance; by the same reason we must hold that it was played on the race course, and that the horses were the players. Such disquisitions are very far removed from the ordinary method of thought prevailing among men. It is not consistent with the just and benign spirit of our law to give to a criminal statute an interpretation which can he maintained only by a keen and scholastic ingenuity. The meaning of the law which consigns a man to-prison, or deprives him of his property should he plain and obvious, and easily understood by an ordinary capacity. Betting money is not an offence by the common law; and is punishable only in the particular cases which are made criminal by statute. Horse races have been in some measure favored by our legislation. By the 18th section, of Art. 56, of the Code, the clerks of the Circuit Courts are authorized to issue licenses for the sale of spirituous and fermented liquors at horse races. And the Maryland Jockey Club was incorporated by the Act of' 1812, chapter 55. Persons may attend the races and hazard their money as freely as they choose by betting. on the horses, and they will not thereby become amenable to any legal penalties. The Jockey Club holds its meetings for these races under the authority given by the Legislature in its charter of incorporation. If betting money on the horses, were regarded by the law as playing at a game of chance, the race course would be “ a place of gambling” within the meaning of the statute, and the Jockey Club would be indictable for maintaining it. But we have seen that they have the express authority of the Legislature for these races. It may he urged that wagering money on a horse race is as immoral and as evil in its consequences as playing at a gaming table ; and that these pool rooms present to the idle and dissipated all the temptations which belong to any form of gambling. But- such arguments do not justify us in extending the statute beyond the hounds of a just and reasonable construction of its language. It is for the Legislature to make such changes in the law as it may consider the public good to require. Our functions are limited to interpreting and enforcing the Legislative will when it has been declared ; and it would be very unwarrantable in us to permit any private sentiments of our own to affect the construction which we give to these statutes.

(Decided 11th March, 1885.)

In the argument of this case at the bar we were referred to many authorities from the Courts of other States, and to some from England. We have given them attentive consideration; hut as the statutes which they construe are very different from our own, we have not been able to derive much aid from these sources, even if we were disposed to follow the opinions of the learned Judges.

We think that the selling of the tickets and the keeping of the pool rooms mentioned in the evidence, were not violations of law, and that the ruling of the Criminal Court ought to he reversed.

Ruling reversed, and new trial granted.

While four of the sis J udges before whom this case was argued, concurred in reversing the ruling of the Criminal Court and in granting a new trial, a majority of the Court failed to unite in the same opinion.