State v. Williams

157 P. 957, 52 Mont. 369, 1916 Mont. LEXIS 60

• Court: Montana Supreme Court
• Decided: May 13, 1916
• Docket: No. 3,863
• Status: Published

Opinion

MR. JUSTICE SANNER

delivered the opinion of the court.

The appellant was accused, tried and convicted of a violation of section 8417, Revised Codes, the charge being that at the time and place mentioned in the information he did willfully and unlawfully, etc., “have in his possession and under his control and did keep” in a certain room, in Butte, occupied by him, “gambling implements, to-wit, a faro lay-out,” etc.; and he seeks a reversal of the judgment against him, principally because, as he contends, the evidence is insufficient.

The record discloses that on December 27, 1915, the [1] appellant’s room was visited by the police and others, who therein seized certain gambling devices, including what some of the witnesses call “a faro lay-out,” besides $192.50 in silver wrapped up in a “crap cloth.” The devices so found constituted, according to at least one of the witnesses, all the paraphernalia used to conduct the game of faro, except the “dealer’s box.” The contention is that the term “faro lay-out,” as used in section 8417, means the complete outfit requisite to conduct the game of faro, and, as the game cannot be carried on without the dealer’s box, the failure to find that entitles the appellant to his discharge. This is not correct. According to standard authorities, there are for the game, of faro two essentials and various accessories; the essentials are the “dealer’s box” and the “lay-out,” the latter being a board commonly covered with green cloth to which the entire spade suit is affixed in a certain order. (3 Century Dictionary, 2144; Standard Dictionary, 20th Century ed., 662; 10 Britannica, 11th ed., 186; Foster’s Complete Hoyle, p. 487.') That this was known to and appreciated by the legislature in framing section 8417 is clear from the fact that, omitting the colorless accessories, it fixed upon the essentials and denounced as a crime the possession of either the dealer’s box or the lay-out—a meaningless provision if the dealer’s box were in legislative contemplation a necessary part of the lay-out itself. The possession of the “lay-out” as defined above was amply established; the case was therefore properly submitted to the jury, who were authorized to accept or reject the appellant’s explanation of such possession. Their verdict cannot be disturbed. -

Some minor errors of a procedural character are also assigned, but examination of them fails to disclose anything to call for a reversal.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.