State v. Mann

2 Or. 238

• Court: Oregon Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Prim, J.

The indictment charges that Mann did unlawfully permit a “ gambling device ” to be set up in a house by him occupied or under his control, which was prohibited by section 666 of the Code of Criminal Procedure. The device specified in the instrument is “ a game of cards commonly called poker.” Section 666 of the Code is in these words: “ All gambling devices of whatever name or nature adopted, devised or designed for the purpose of playing any game of chance for money, &c., are prohibited from being set up, used, &c.” It will be seen that the “game of cards commonly called poker ” is not specified by name as one of the devices prohibited by this section; nor can it be considered a gambling device in the sense of the words used in this section ; because, to be such, it must be something tangible and adapted, devised or designed for the purpose of playing a game of- chance for money, &c. A game is nothing tangible, and is not adapted, nor can it be used in playing a game of chance. The game is the result produced by the use of the device; and the prohibition of the section is evidently against the use of the device instead of the result of it. It is insisted, with great earnestness on behalf of appellant, that the statute on which this indictment is founded is void, for uncertainty; for the reason that it does not enumerate or define the gambling devices which it undertakes to prohibit. A crime or public offense is some act forbidden by law; and it is a well settled rule of law that no one can be punished for doing an act, unless it clearly appears that the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it. The act constituting the offense should be clearly and specially describéd in the statute, and with sufficient certainty, at least, to enable the court to determine, from the words used in the statute, whether the act charged in the indictment comes within the prohibition of the law. Do the provisions of the statute in question do this ? Can the court ascertain from all the words used in it, without resorting to evidence, what a gambling device is? We think not, because the term has no settled and definite meaning. It is nowhere defined in the Code, nor has it any common law definition. For these reasons, we think, section 666 of the Code of Criminal Procedure has failed to give a sufficient description of gambling devices to enable the courts to determine, with certainty, what was intended to be prohibited by the legislature, and is, therefore, void. Then it was error in the Circuit Court to overrule the demurrer to the indictment.

Judgment is reversed.

Wilson, J., dissented generally.