chances, or records or registers bets.1 To regulate the bets and sell pools are parts of the same offense. It makes no difference that the race on which the pool is made is outside the state,3 nor that the seller claims to be only an agent to transfer wagers or results for a principal out of the state. The indictment need not charge the names of the persons with whom the transaction was had." VI. KEEPING A GAMING HOUSE. § 1306. What criminal.- At common law the keeping of a gaming house is held to be a nuisance, because it has a tendency to bring together disorderly persons, promote immorality and lead to breaches of the peace. In charging the common-law offense it is unnecessary either to allege or prove the names of the players or that there was gambling in fact, it being sufficient that the house is kept for that purpose, thus creating a nuisance. An ordinance regulating gambling houses will not abrogate the common law in this respect where the ordinance does not fully cover the common-law offense. But if by statute some games are made unlawful and others are licensed, games which are not mentioned will be considered lawful, the common law being superseded by such a statute.10 The statutes on the subject are usually directed to the prevention of the evil of gaming and not for the suppression of the nuisance incident thereto." The gaming need not have been 1C. v. Clancy, 154 Mass. 128; C. v. Swain, 160 Mass. 354; S. v. Howard, 9 Ind. Ap. 635; C. v. Ferry, 146 Mass. 203; C. v. Moody, 143 Mass. 177. 2C. v. Ferry, 146 Mass. 203. That the books, etc., are gaming devices, see infra, § 1310. v. Higginson, 2 Burr. 1232; Rex v. Rogier. 1 B. & C. 272. And see supra, § 1169. 7 P. v. Jackson, 3 Denio, 101; Lord v. S., 16 N. H. 325; S. v. Savannah, T. U. P. Charl. 235. The offense is committed in causing and procur 3 Edwards v. S., 8 Lea, 411. And ing many persons to resort to game see supra, § 1297. for the defendant's profit, directly or 4 P. v. Weithoff, 93 Mich. 631; Ran- indirectly: S. v. Layman, 5 Harr. some v. S., 91 Tenn. 716. 5 C. v. Swain, 160 Mass. 354. 6 T. v. Sponsler, 1 Dak. 277; S. v. Layman, 5 Harr. 510; P. v. Jackson, 3 Denio, 101; Lord v. S., 16 N. H. 325; S. v. Crammey, 17 Minn. 72; U. S. v. Ismenard, 1 Cranch, C. C. 150; U. S. v. Milburn, 4 Cranch, C. C. 719; Rex 510. 8 S. v. Prescott, 33 N. H. 212; S. v. Crammey, 17 Minn. 72. 9 U. S. v. Holly, 3 Cranch, C. C. 656. 10 P. v. Goldman, 1 Idaho, 714. 11 S. v. Crogan, 8 Ia. 523; New Orleans v. Miller, 7 La. An. 651. Habit actually commenced or carried on if the place is fitted out for the purpose and with the intent prohibited by statute.1 As the crime consists in keeping for gaming purposes, the game contemplated must be one having a hazard, which may be money, treats, or the use of the table or room, or anything of value." 1307. Place and time.- Any place fitted up for the purpose and with the intention that it shall be used for gaming is a gambling house,' and it is unnecessary that this be the principal business, or even that the game itself is played in the room if the betting is done there. It matters not that the place is a sleeping-room,10 and it is not essential that every person who desires shall have access to it," it being sufficient that every person is admitted who desires to play and is vouched. for by some one known to the keeper. Keeping a gambling house is not a continuing offense, and therefore the keeping for ual use of a house for such purpose makes it a disorderly house: Brown v. S., 49 N. J. 61. 1 Robbins v. P., 95 Ill. 175; S. v. Staker, 3 Ind. 570; S. v. Pancale, 74 Ind. 15; S. v. Miller, 5 Blackf. 502; McAlpin v. S., 3 Ind. 567. 2 P. v. Sergeant, 8 Cow. 139; New Orleans v. Miller, 7 La. An. 651; S. v. Markham, 15 La. An. 498. It need not be a game of chance: S. v. Black, 94 N. C. 809. Whether it is a game of chance is for the jury: Glascock v. S., 10 Mo. 508. It is not necessary to charge that any particular game was played, but having so charged it is necessary to prove as charged: Dudney v. S., 22 Ark. 251. The sum lost or won need not be particularly specified: C. v. Crupper, 3 Dana. 466. 3 Robbins v. P., 95 Ill. 175. 4 S. v. Eaton, 85 Me. 237; S. v. Maurer, 7 Ia. 406; S. v. Cooster, 10 Ia. 453; S. v. Leicht, 17 Ia. 28; S. v. Bishel, 39 Ia. 42. 5 S. v. Book, 41 Ia. 550. Contra, Harbaugh v. P., 40 Ill. 294; P. v. Sergeant, 8 Cow. 139. And see supra, 1286. 6 Lord v. S., 16 N. H. 325. 7 Robbins v. P., 95 Ill. 175; S. v. Carpenter, 60 Conn. 97. The place must be resorted to for illegal gaming: C. v. Stahl, 7 Allen, 304; however, actual resorting to the premises is not necessary to constitute a keeping of a house for the purpose of betting with persons resorting thereto, but it is necessary to the offense of keeping a house to which persons resort for betting: Reg. v. Brown, 1 Q. B. D. (1895) 119. To prove the keeping of a house for the purpose of betting, receipt of telegrams at such house relating to bets, and conversations therein as to the same matter, may be shown, though the bets are actually made elsewhere: Ibid.; Reg. v. Worton, 1 Q. B. D. (1895) 227. 8 S. v. Eaton, 85 Me. 237; Hitchins v. P.. 39 N. Y. 454. 9 P. v. Weithoff, 51 Mich. 203. 10 S. v. Black, 94 N. C. 809. 11 Lockhart v. S., 10 Tex. 275; Rice v. S., 10 Tex. 545. 2 one day,1 or even the allowing to play but once, is enough. If the offense is the keeping of such house without a license, the taking out of a license will be no excuse for the offense as already committed.3 § 1308. The keeper.- Under some statutes the keeper or person within the scope of the law must be the owner of the place, but under others he may be a lessee, or a person in charge of the place, or a servant. The lessor may be guilty 8 but it must appear that To render one although the place is kept by another; he had knowledge of the prohibited purpose. guilty as keeper he must knowingly permit the playing; 10 that is, he must knowingly " keep the place for the prohibited purpose. One who takes a percentage for the use of his rooms is guilty of keeping. 13 12 § 1309. The indictment and evidence. The indictment need not charge that the keeping was for gain or reward," nor 1S. v. Pancake, 74 Ind. 15; S. v. Crogan, 8 Ia. 523; Buck v. S., 1 Ohio St. 62. 2 S. v. Cooster, 10 Ia. 453; Hitchins v. P., 39 N. Y. 454; S. v. Markham, 15 La. An. 498. 3 S. v. Raymond, 12 Mont. 226. 4 Poteete v. S., 72 Ala. 558. 5 Poteete v. S., 72 Ala. 558. It may be made criminal for the officers of an agricultural society to lease a portion of the grounds for the purpose of gaming: S. v. Darroch, 12 Ind. Ap. 527. Stevens v. P., 67 Ill. 587; S. v. Raymond, 12 Mont. 226; Chase v. P., 2 Colo. 509. But one may be guilty of permitting the playing of games in a public place without being the keeper of a gambling house: S. v. Currier, 23 Me. 43. 7 Wooten v. S., 24 Fla. 335. 8 S. v. Ebert, 40 Mo. 186; Voght v. S., 124 Ind. 358; Rodifer v. S., 74 Ind. 21; C. v. Dean, 1 Pick. 387; C. v. Bolkom, 3 Pick. 289. And see supra, § 1140-1142, 1174, 1248. 9 Harris v. S., 5 Tex. 11. 10 C. v. Crupper, 3 Dana, 466. If a table is ordinarily used for proper purposes it must appear that the keeper had knowledge of improper use; but such knowledge may be inferred in the absence of proof of want of knowledge: Yepperson v. S., 39 Tex. 48. 11 S. v. Carpenter, 60 Conn. 97; Padgett v. S., 68 Ind. 46; S. v. Currier, 23 Me. 43; S. v. Cooster, 10 Ia. 453. An indictment for "unlawfully and knowingly" keeping is suffi cient: S. v. Crowder, 39 Tex. 47. The lessor must have direct knowledge: S. v. Ebert, 40 Mo. 186. General reputation of the place held sufficient to give the lessor knowledge: Voght v. S., 124 Ind. 358; but not when lessor lives at a distance: Rodifer v. S., 74 Ind. 21; C. v. Dean, 1 Pick. 386. But see C. v. Bolkom, 3 Pick. 280. 12 Stoltz v. P., 5 Ill. 168. The fact that defendant dealt the cards at a house where faro was played held prima facie evidence that he was the keeper: U. S. v. Miller, 4 Cranch, C. C. 104. 13 Ransom v. S., 26 Fla. 364. 14 C. v. Colton, 8 Gray, 488. state who played,' nor that the house was his house. Neither is it necessary to charge that a particular game was played; but if the offense is so charged it must be proved. The indictment need not describe the house other than to state the location so as to bring it within the jurisdiction of the court. A charge of permitting sufficiently shows knowledge. The keeping and permitting may be charged in the same count as constituting the offense, without duplicity. Circumstantial evi dence may be sufficient to sustain a conviction. Evidence that for previous years the house was used for proper purposes will be no excuse. It need not be shown that the house was actually used for gaming if it appears that it was kept by defendant with that intention. A witness should not be allowed to testify that it was so kept, as that is a question for the jury.10 By statute, the finding of gaming implements, devices or appurtenances may be made prima facie evidence that the house is kept for such purposes, and such a statute will not be unconstitutional."1 10 VII. KEEPING AND EXHIBITING GAMING DEVICES OR TABLES. § 1310. What constitutes.-Some statutes provide for the offense of keeping and exhibiting gaming tables or devices as distinct from the offense of gaming. Such statutes are usually 18. v. Noland, 29 Ind. 212; S. v. Prescott, 33 N. H. 212; Chase v. P., 2 Colo. 509. 2 S. v. Hubbard, 3 Ind. 530. 3 Dudney v. S., 22 Ark. 251. 4Dohme v. S., 68 Ga. 339; S. v. Prescott, 33 N. H. 212. In charging such offense it is not necessary to say that the defendant "then and there" did the acts complained of: S. v. Marchant, 15 R. I. 539. 5S. v. Kaufman, 59 Ia. 273; S. v. Cure, 7 Ia. 479. It would be better to charge that the house was under the control of defendant: S. v. Middleton, 11 Ia. 246. 12 10 Wheeler v. S., 42 Md. 563. 11 Wooten v. S., 24 Fla. 335; Hous. ton v. S., 24 Fla. 356. 12 Setting up a gaming table is an entire offense, and inducing others to bet upon it a distinct one, but where both are perpetrated at the same time there is but one offense: Hinkle v. C., 4 Dana, 518; S. v. Pate, 67 Mo. 488. A charge of frequenting and keeping a gaming table charges but one offense, that of keeping: T. v. Copeley, 1 N. Mex. 571. On the other hand it is said that keeping a faro bank and betting on the same are offenses which may prop 6 Davis v. S., 100 Ind. 154; S. v. erly be joined: S. v. Holland, 22 Ark. Cooster, 10 Ia. 453. 7S. v. Worth, R. M. Charl. 5. 8 Scott v. S., 29 Ga. 263. 242. Merely betting at faro is not carrying on the game: Ex parte Ah Yem, 53 Cal. 246. But where a party 9 Chase v. P., 2 Colo. 509; S. v. Mil- is indicted under the charge of playler, 5 Blackf. 502. ing and conducting a game as owner, 3 so worded as to prohibit the keeping of certain devices by name; such as devices for playing faro,' keno,' banking games, etc., and they then add, in general terms, "games of like nature." But such general term includes only devices of like nature as those enumerated. A table on which poker is played, or dice he may be convicted of playing at another's game: P. v. Ah Own, 85 Cal. 580. In Maryland the keeper of a faro table to be within the act must be a tavern-keeper or a retailer of spirituous liquors: U. S. v. Lefevre, 1 Cranch, C. C. 244. 1S. v. Holland, 22 Ark. 242; C. v. Monarch, 6 Bush, 301; Brown v. S., 10 Ark. 607; S. v. Whitworth, 8 Port. 434. Counts for exhibiting and betting may be joined: S. v. Holland, 22 Ark. 242. 2 Hazen v. S., 18 Fla. 184; Trimble v. S., 27 Ark. 355; Portis v. S., 27 Ark. 360; Miller v. S., 48 Ala. 122. 3 Parker v. S., 13 Tex. Ap. 213; Buford v. C., 14 B. Mon. 24. A pool table may be a gaming table, but it is not a “banking device" within the statutory prohibition: Webb v. S., 17 Tex. Ap. 205. 4 They may thus cover a billiard table kept for hire: Holt v. C., 2 Bush, 33; C. v. Kinsley, 133 Mass. 578; Blanton v. S., 5 Blackf. 560; a bowling alley: S. v. Howery, 41 Tex. 506; or a crap table: Bell v. S., 32 Tex. Ap. 187. Shuffle board is a game of skill and the keeping of the table is not indictable: S. v. Bishop, 8 Ired. 266. Pico is within the mischief intended: Euper v. S., 35 Ark. 629. Tables for draw poker are included: Wren v. S., 70 Ala. 1; also pool tables: S. v. Kelly, 24 Tex. 182; Webb v. S., 17 Tex. Ap. 205; a "stock clock: " S. v. Grimes, 49 Minn. 443; haphazard: C. v. Wyatt, 6 Rand. 693; C. v. Fraize, 5 Bush, 325; a tenpin alley or grand raffle: Stearnes v. S., 21 Tex. 692; an apparatus for drawing lots: Lowry v. S., 1 Mo. 518. “Any kind of a gaming table or gambling device for the purpose of playing any game of chance for money," etc., includes cards: Eubanks v. S., 5 Mo. 450; S. v. Herryford, 19 Mo. 377. But see S. v. Gilmore, 98 Mo. 206. A crack in the floor may constitute a gaming device: S. v. Flack, 24 Mo. 378. A horse-race is not a device: S. v. Hayden, 31 Mo. 35; but black-boards, sheets, manifold books and policy slips for placing bets on horse-races may be: C. v. Adams, 160 Mass. 310; S. v. Shaw, 39 Minn. 153; but see contra, P. v. Weithoff, 93 Mich. 631. The statute does not include selling pools on a horse-race: James v. S., 63 Md. 242. Game cocks are not implements for gambling within the statute: Coolidge v. Choate, 11 Met. 79. It is not necessary to describe the "gambling device;" it is sufficient to allege the time, place and person to whom exhibited and that the name is unknown: Pemberton v. S., 85 Ind. 507. 5 S. v. Bryant, 90 Mo. 534; Huff v. C., 14 Grat. 648. The question of "like character" is one of law, but the question whether a particular table is of the species is one of fact: Mims v. S., 88 Ga. 458. Keeping a policy shop is not within an ordinance forbidding the keeping of any rolly-pooly, keno or faro table or other instrument or device for the purpose of gaming: Marquis v. Chicago, 27 Ill. Ap. 251. But a statute simply prohibiting generally the keeping of all gaming devices has been held void for uncertainty: S. v. Mann, 2 Oreg. 238. 6 Lyle v. S., 30 Tex. Ap. 118. |