Kelley v. Dirks

167 N.W. 724, 40 S.D. 453, 1918 S.D. LEXIS 93

• Court: South Dakota Supreme Court
• Decided: May 18, 1918
• Docket: File No. 4292
• Status: Published

Opinions

POLLEY, J.

The plaintiff in • this1 action is the adminis - trator of the estate of a deceased1 person, and. the defendant ais tibe surviving wiidbw: oif such decedent. Shortly prior to the death of de'cadiemt he made a bet or wager of a sum of money on the result oif the general election, ito be held in November, 1916. The money so wagered1 was: placed in the hands of a stakeholder to abide tire result oif said election, but with tire understanding that, ’¿If the decedent should die prior to the date of siudb election, then such sum of money should be turned1 over to decedent’s wife. The .death of decedent took place before said' election was 'held,, and the stakeholder turned said money over to tire defendant as decedent’s widow. Plaintiff, assuming that said money belonged to the decedent at the time of his death, claimed1 that it befcwigeri! to, deseenidient’s, estate after his death, and1 made demand therefor upon defendant. Upon her refusal to surrender said mlooey, .plaintiff instituted, this action flor Itire recovery thereof. 'Defendant demurred to plaintiff’© complaint, and, from an order overruling salid demurrer, defendant appeals.

[1, 2] In the absence of a .statute making the wagering of money a criminal offense, there ,is no dioulbt that such wager may 'be withdrawn by the party making it at any time before the happening Oif the event upon which the wager is made. Wasserman v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209. Biut in this state the wagering of money on the result of an election is a criminal offense. Section 59, Penal Code, provides as follows:

“Every person who, makes, offers, or accepts any bet or wager upon the result oif any election, * * * is guilty of a misdemeanor.”

Under the provisions of this section, the offense is completed as soon as the wager is made. This brings the 'case within the rule followed in Matthews v. Lopus, 24 Cal. App. 63, 140 . California lias a statute similar in effect to section 59 off our Penal Code, and, in considering said statute, that court said!:

“It will thus be observed1 that, under our law, as it stood at the time of the traiisaatioin giving rise to this action and as it now stands, the act of the (plaintiff in making the w'ager upon the result of the 'contest off skill,’ ¡in a wrestling match, between himself and said McLeod was itself a crime, and' the money sought to be recovered! here constituted lone of 'the essential means whereby tine crime was committed. The consequence is. that the transaction was void from its very inception. Indeed, the .transaction in law was not a contract. It was a crime fully completed1 and Consummated' upon the execution of the act of making the -wager, and it, of course, could not be the subject off disaffirmance or withdrawal by the parties to the wager in the sense that thus the law could take cognizance of 'the transaction amid restore the parties to statu quo. * * * In tine case here, however, while the transaction as to which the wager was made had not been completed' and .the disaffirmance of the wager may, (therefore, be said to have taken place before the event upon which it was staked ooourred', still, as bias been shown, the mere act of making the wager was, under the law, itself a cdm.pleted crime, and in such case, therefore, a party to the betting transaction cannot ¡claim to be in any different or better position, in the eyes of the law, than if, in the absence ¡of' any penal statute against wagering upon such events as the one concerned here, he should, after such event had' taken place -and been decided against him, seek the aid of the counts1 in an attempt to recover the money so wagered and lost.”

[3] As the wagering of the money constituted a complete criminal offense under the statute, the count would not have entertained an action by the ¡decedent for a recovery of such money, even though he had withdrawn from, 'the wager before the happening of the event on which the wager was made And, if the decedent could not have maintainedsuch action 'during his', lifetime, neither can his administrator after his death, and the demurrer should have been sustained.

The order appealed from is reversed.