Ritte v. Commonwealth

Judge Stites, delivered the opinion of the court. The appellant was indicted for an alledged violation of the following provision of the Revised Stat [39] utes, (368:) “Whoever shall set up, exhibit, or keep for himself or another, or shall procure to be set up , exhibited, or kept, any faro bank, gaming table, machine, or contrivance used in betting, or other game oí chance, whereby money or other thing is or maybe won or lost, shall be fined five hundred dollars and costs, and imprisoned till the same are paid, or imprisoned not more than one year, or both so fined and imprisoned; shall be deemed infamous after conviction, and be forever thereafter disqualified from exercising the right of suffrage, and from holding any office of honor trust or profit.” Upon the trial below he was convicted, and adjudged to pay a fine of five hundred dollars, and remain in jail until payment was made, &c.; and from that judgment he has appealed. It appeared from the evidence that the appellant was a German, and the keeper of a coffee house or saloon in Newport, in which he sold beer, cigars, &c., and that he kept in the front room of his shop, and open to public view, what was called a baggatelle table. This table is described by the witnesses as being about twelve feet long, and four wide, with holes in one end, and used for a game called baggatelle, played by driving balls with sticks from one end of the table into the holes at the other. It seems that visitors to the saloon, or shop, were in the habit of playing the game publicly, and for beer and cigars, but there was no proof of any money or other thing having been bet. There was evidence conducing to show that the house was a German coffee house, and also that the game of baggatelle was an amusement common among Germans, similar to dominos, drafts, and chess, and was resorted to not for gambling for profit or money, but for amusement only. Upon this state of facts the circuit court gave the following instruction, which was objected to by appellant, “It is a question for the jury to determine ‘ whether the table described by the witnesses is a [40] ‘ machine or contrivance used in betting, or other ‘ game of chance. If they find that said table is ‘ made and used for that purpose, and that said table ‘ was so set up or kept by the defendant in this county, at or about the time as stated in the indict- ‘ ment, then they will find the defendant guilty as £ charged, and fix his punishment by a fine of $500, £ and cost and imprisonment, till the same are paid, £ or imprisoned not more than one year, or both so £ fined and imprisoned.” 1. An instruction to a jury, in the trial of a penal case, although it very closely pursues the language of the statute, may be erroneous. It should be so explicit, and have such connection with the facts of the case, as to enable the jury clearly to apply the facts to the law as expounded by the instruction, and meet the evil intended -to be ■remedied. 2. The object of the Legislature, in passing theact against the setting up of gaming tables, (Rev. The instruction pursues almost literally the words of the act, but fails, in our opinion, to furnish such an exposition of the meaning and intent of the law as was demanded by the peculiar circumstances and facts before the jury, and in that was misleading and erroneous. It is obvious, we think, from the language of the section, and the severe punishment denounced against any violation thereof, that the object of the legislature Avas to suppress that species of gambling carried on by banking games, such as faro, roulette, and other games, where there is a fund of money offered and ready to be staked on all bets others may choose to make against the banker, on the game which he shall exhibit to entice bets. This is the character of gaming table, machine, and contrivance mentioned and intended to be embraced by the section in question, and those who are guilty of keeping or setting up such tables, machines, or contrivances, are those intended to be rendered infamous, and dis-. qualified from voting and holding office. To convict, under this section, it should appear that the table, machine, or contrivance, was such as is ordinarily used for gambling for money or property. A literal construction of the law would bring within its purvieAV all species of games for pastime and amusement, and subject to punishment and infamy every one who should unfortunately have permitted a back-gammon, chess or draft board, or a set [41] of dominos, to occupy a place upon his parlor table, or in his house, although neither he nor his visiters may have ever wagered a cent upon such games. They are machines or contrivances “used” for games, whereby money “may be won or lost,” and come within the letter of the law, but we cannot believe they were intended to be embraced. They are certainly not within the intent of the section, when fairly construed with the other sections of the chapter. Stat. 368, sec.6,) was to suppress that species of gambling carried on by banking games, such as faro,roulette, and other games where there is a fund of money ready to be staked on all ibets that others may choose to make against the banker. It was not intended to embrace backgammon, chess, or draft boards, or dominoes, kept for mere amusement, and not as instruments for gambling. If therefore tables,.such as were described by the witnesses, were used ordinarily for gambling purposes, and not for amusement only, and such a table was kept in appellants house, as charged in the indictment, then he was liable to the punishment denounced by the section, supra, but not otherwise, and the instruction should have been so.modified as to have submitted the question of the ordinary use of such table to the jury. For any gambling or betting that may have been carried on in defendant’s house, with his knowledge or permission, on such table, although it may have been ordinarily used for amusemement, he would be liable under the 10th section of the same chapter, for permitting gaming in his house. Judgment reversed, and cause remanded for a new trial, and other proceedings in conformity with this opinion.