People v. Benítez

Mb. Justice Wole delivered the opinion of tlie court. In this case, which purports to he a prosecution under section 299 of the Penal Code, appellants assign four grounds for reversa1 of the judgment: I. Insufficiency of the complaint. II. Inapplicability of section 299 of the Penal Code to a game played in a private house. III. Former jeopardy. IV. Insufficiency of the proof. We shall first consider the plea of former jeopardy. This plea is not well founded. It is based on the fact that the case being originally tried in the district court before Judge Gill, without a jury, and all the proof submitted to him, that said judge died about the middle of June, 1911, without making any finding or rendering any judgment. While it is true that a previous jeopardy may in some cases he raised on a plea where a first jiiry is discharged and a second is sworn, an exception arises when such first jury, by some act or happening independently of the will of the prosecutor, is prevented from acting as such jury, as when one of the number dies. In such an event there is no possibility of a verdict. The jeopardy is arrested and there must be a new trial. Here it was a judge who was the trier of the fact, hut the same principle applies, and the second trial judge committed no error in deciding the issue of jeopardy against the defendants. Nugent v. State, 24 Am. Dec., 746; State v. McKee, 21 Am. Dec., 499; People v. Rossy, 85 Cal., 383. In arguing the question of the sufficiency of the complaint, two points are made. The first is that the complaint is defective, inasmuch as it charged the defendants with playing poker with chips and money, instead of saying that they were playing for money or for chips representing money or value. The case of People v. Carroll, 80 Cal., 153, cited by the ap — 238 — pellants, only decides tliat an information setting up that the game was “conducted for money,” is not equivalent to saying that it was “played for money,” as required by the statute, inasmuch as the game might he conducted for sport and somebody on the outside paid for conducting it. While the complaint is loosely framed, it is sufficient to give the defendants notice that money was being exchanged at the game, and hence that they were playing for money. The principal question involved in the ease is whether section 299 of the Penal Code, as amended by subsequent laws, was aimed or directed at suppressing all gambling for money or value, or whether it was designed to prevent the kind of gaming from which some one or more persons directly or indirectly derived a gain or pecuniary profit frequently without any monetary risks on their part or with a percentage in their favor. At common law, gambling or gaming was not an offence unless it tended to become a breach of the peace or became a public nuisance. A common gambling house was indictable as a nuisance, Lord v. State, 41 Am. Dec., 730. Subsequent statutes were passed almost everywhere against public gaming and public gambling houses, and sometimes against common gamblers. .Section 330 of the Penal Code of California provides: “Gaming prohibited. Penalty. — Every person who deals, plays, or carries on, opens, or causes to be opened, or who conducts, either as owner' or employe, whether for hire or not, any game of faro, monte, roulette, lansquenet, roioge et noir, rondo, tan, fan-tan, stud-horse, poker, seven-and-a-half, twenty-one, hokey pokey, or any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of said prohibited games, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. ’ ’ — 239 — Thus it will be seen by comparison that section 299 of the Penal Code as originally passed by our Legislature, was, for all purposes, identical with the California statute. lienee, as our statute was taken from California, it must be presumed that the legislature adopted that section with the construction put upon it by the courts of California. People of Porto Rico v. Rivera, 7 P. R. R., 344; People of Porto Rico v. Colón, 15 P. R. R., 666; James v. Appel, 192 U. S., 429; The Copper Queen Mining Co. v. Arizona, 206 U. S., 475; Kealoha v. Castle, 210 U. S., 154. The word “.play” in the first part of that statute has been uniformly considered by the courts of California to be used in the same general sense as “deal,” “conduct,” or “carry on.” The person or persons who deal, conduct, carry on, etc., manage and control the game, fix the rules and conventions thereof, and derive advantage therefrom. To “play” a prohibited game is used in this part of the Statute in such a sense. In People v. Beatty, 14 Cal., 572, the information contained the words “did deal and play a game of faro.” The word “play” as there used, is equivalent to “open for play” or “spread for play”; because one might still be he'd to be playing the game, although he merely set up, owned or controlled the gaming instrument. In People v. Gosset, 93 Cal., 641, an indictment charging that the defendant “did deal, play, conduct and carry on a game of faro,” was held to constitute but one offense thereby showing that “play” was used in the same general sense as “conduct” or “carry on.” In People v. Ah Own, 85 Cal., 585, the court upheld an instruction which said that the word “play” as used therein did not refer to such persons as play or bet at or against the game, (i. e. those who are enumerated in the lat-' ter part of our statute). The word “play” was specifically construed in the case of People v. Ah Yem, 53 Cal., 247, where it was held that one who played at or bet at a game could not be held to play the game in the sense of conducting, carrying on, etc. The same — 240 — construction is necessary from the principle of noscitur a sociis. It was held in People v. Sam Lung, 11 Pac., 673, that the statute was not limited to owners and employes, but the purport of the decision is that some one must be conducting, carrying on, Or managing the game. A similar construction has been put upon a similar statute in the State of Washington, State v. Preston, 95 Pac., 83; State v. Gaasch, 105 Pac., 817; State v. Hardwick, 114 Pac., 873. In State v. Gaasch, the court said: “The sufficiency of the information is called in question. It will be seen that the information does not charge defendants, either as owners, proprietors, employes, or assistants, or that they had, in any manner such as is made penal by the felony statute, anything to do with the game. As stated in State v. Preston, 49 Wash., 298, 95 Pac., 82, and State v. Burns, 102 Pac., 886, the object of the felony statute was to suppress gambling resorts and to punish those who maintained them. Hence, considering the purpose of the law as well as its letter, to sustain a conviction for a felony there must have been some charge of proprietorship. It is not sufficient to say that the one charged merely played or sat in the game, but the information should allege his relation as owner, proprietor, employe or as assistant to one who sustains a prescribed relation to the game. The authorities sustain this view. State v. Dennison, 60 Neb., 157, 82 N. W., 383; Brazelle v. State, 86 Miss., 286, 38 South, 314.” That the word <ip1ay” was not intended to apply to a person who merely took a hand or bet at the game is evident from •the use of the words “play at” or “bet,” used in the latter part of the section. People v. Sam Lung, 11 Pac., 673, supra. Tf the Legislature had intended to prohibit all classes of gambling it could have forbidden anyone from playing any game, of chance for money. State v. Bryant, 2 S. W., 837. It is evident from an examination of the foregoing cases, that the object sought was the suppression of all games mentioned in the statute where some person conducted, opened or managed 'the game in which he or some other person ob — 241 — tained a profit or gain by the mere fact of such opening, managing or conducting. In all the convictions in the Pacific: states, the act charged has been a public one or a banking' game like faro. Section 299 of our Penal Code remained in force until the year 1908, when the statute added the word-“poker” to the list of prohibited games. “Poker” may be played without a banker, conductor or manager, and the game is generally so played privately or at a club, the deal successively passing to each one of the players. The game, however, may be played in such a way that a person, as owner or proprietor or banker, may obtain a profit or a gain by extracting a certain percentage from each of the hands played or derive some other advantage, and so bring the game within the prohibition of the statute. As the Legislature added the word “poker,” and in no other way changed the character of the act, the principle of noscitur a s-ociis which we shall discuss later is applicable. Finally in 1910 the Legislature passed the Act which is as follows: “Section 1. — That section 299 of the Penal Code is hereby amended so as to read as follows: “ ‘Section 299. — That every person who deals, plays or carries on, opens or causes to be opened, or who conducts, either as owner or employe, whether for hire or not, any game of faro, monte, roulette, fan-tan, poker, seven-and-a-half, twenty-one, hokey pokey, or any game of chance played with cards, dice or any device for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of the said prohibited games, is guilty of a misdemeanor and shall be punishable by a fine not exceeding five hundred dollars, or by imprisonment in jail not exceeding six months, or by both such fine and imprisonment. “ ‘If a person makes oath before a justice of the peace, municipal or district judge, that he believes, or has probable- cause to believe, that a house or other building, room or place, is unlawfully used as and for a common gaming-house, for the purpose of gaming for money or other property, or is occupied, used or kept for promoting a lottery, or for the sale of lottery tickets, or for promoting the — 242 — game known as “policy lottery” or “policy,” and that persons resort to tbe same for any sucli purpose, such justice of the peace, or municipal or district judge, shall, in case satisfactory evidence is presented, issue a warrant commanding any marshal or police officer to enter such house, building, room or place, and to arrest the keepers thereof, all persons in any way assisting in keeping the same, whether as janitor, door-keeper, watchman, or otherwise, all persons who are there found participating in any form of gaming, and all persons present, whether so participating or not, if any lottery tickets or other implements, apparatus or materials of any form of gaming are found on said place, and to take into their custody all of the implements, apparatus or materials of gaming as aforesaid, and to keep said persons, implements, apparatus or materials, so that they pray be forthcoming before some court or magistrate, to be dealt with according to law. All articles and property seized under the provisions of this section, except money, shall, upon evidence before the .court that such articles and property were used for gaming purposes, be confiscated and destroyed, and all money so seized shall ibe covered into the Insular Treasury, in the same manner as fines and costs. The warrant hereinbefore provided shall not be issued but upon probable cause, supported by the affidavit of the complainant, in which affidavit the person or persons accused of violating this section shall be named or described, as well as the house or building to be entered and searched; and the judge to whom application is made for a warrant shall before issuing the same, examine on oath the complainant and any witnesses he may produce, taking the depositions of said witnesses in writing and causing them to be subscribed by the parties making them.” It has been suggested that by adding the words “poker” and “any game of chance” the Legislature sought to prohibit every kind of gambling. It will be seen, however, that the only changes in the main body are the additional words, ‘ ‘ or any game of chance,” and the aforesaid principle of noscitur a sociis is controlling. The rule is that where words of particular description in a statute are followed by general words that áre not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general word or words are to be construed as applicable to persons or things of like kind,’'as are designated by the particular word or words. — 243 — Miller v. State, 23 N. E., 95. In that case it was held that an indictment under a statute providing that any person who ‘ ‘ entices or takes away any female of previous chaste character from wherever she may he, to a house of ill-fame or elsewhere, for the purpose of prostitution” is insufficient unless it avers that the place to which the woman was taken was a house of ill-fame or a place of like character. A mere dwelling house being insufficient, and citing Berg v. Baldwin, 31 Minn., 541. Other general words l}ave met similar construction in the following cases: People v. Richards, 108 N. Y., 142-143; McGaffin v. City of Cohoes, 30 Am. Rep., 309; Burks v. Bosso, 180 N. Y., 341; State v. Lowry, 4 L. R. A., N. S., 535; Sims v. U. S. Trust Co., 103 New York, 478. In State v. Bryant, 2 Southwestern Rep., 837 supra, the indictment was based'on section 1548 which reads as follows: “Sec. 1548. Betting on games. — Every person who shall bet any money or property upon any gaming table, bank, or device prohibited by the preceding section, or at or upon any other gambling device, or who shall bet upon any game played at or by means of any such gaming table, or other gambling device, or who shall loan or furnish any money or property to any other person to be bet as aforesaid, and the same shall be so used, or who shall, in any manner, be interested in any such playing or betting at such device, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by a fine not exceeding twenty-five dollars, nor less than ten dollars. ’ ’ The preceding section reads as follows: “Keeping gambling device. — Every person who shall set up or keep any table or gambling device, commonly called A. B. C., faro-bank, E. O., roulette, equality, keno, or any kind of gambling table or device, adapted, devised, and designed for the purpose of playing any game of chance, for money or property, and shall induce, entice, or permit any person to bet or play at or upon any such gaming table or gambling device, or on the side or against the keeper thereof, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars. ’ ’ — 244 — Tlie defendant was charged with having bet a sum of money at and upon a game of chance played with and by moans of a target gun and target and also charging that such target gun and target was a gambling device. The court said: “But, aside from the familiar rule already adverted to, and looking to the bare' reason of the case, it cannot be possible that a 'gun and a target’ were, within the legislative contemplation, a ‘gambling device,’ ‘adapted, devised, and designed for the purpose of playing any game of chance, for money or property.’ If a gun and a target are to be so regarded, a game of marbles would fall equally under the statutory ban. Indeed, under such a latitudinous construction, it is difficult to tell what sports might be interdicted, and what games punished.” The additional words in our statute “game of chance” could have no other object than to prohibit any other game of a like or similar character to the games enumerated, and under- the same conditions of dealing, conducting, opening, carrying on, or playing. If perchance a different policy had prevailed in Porto Rico before the adoption of the California statute and all gambling had been punished here, there might be room for the argument that the Legislature had desired to restore the status quo. But the fact is otherwise. Under the Spanish law it was likewise public gaming or a game in which some one derived a, special advantage or barato that was punished. The traditional policy in Porto Rico is the same as the policy in California. Section 354 of the Penal Code for Cuba and Porto Rico and the judgments of the Supreme Court of Spain of April 13, 1880; December 28, 1887, and January 1, 1889. The statute, in all its history, is only applicable to such public or quasi-public games; viz., where a person initiates or starts a game as a proprietor, or where gambling is promoted in the same way as if he were such proprietor, as where some one obtains a gain or profit independently or the mere fact of playing at or betting at a game. Additional force is — 245 — lent to this view by the added paragraph of the law of 1910. It is only a public gaming house against which the warrant therein described may be directed. We think, therefore, that neither the complaint nor the proof showec], the elements prohibited by the statute. There was no charge or proof that any one was specifically condiicting or dealing a game in the sense of the statute. One can only be guilty of playing or betting at a game when some one is conducting, carrying on, dealing or playing the game prohibited in the sense in which those words have been interpreted. Merely playing a game of poker in a private house is not within the intent of the statute, provided that there is no one who obtains a “rake-off” (harato) or obtains an advantage in any way by maintaining a game or giving the opportunity for play. Any doubt that may arise must be resolved in favor of the liberty of the individual and the freedom of the defendant. U. S. v. Wiltberger, 5 Wheaton, 76; State v. Anderson, 112 Pac., 931; State v. Hardwick, 114 Pac., 873, supra; People v. Bryant, 2 S. W., 837. In the last-named case the court says: “Moreover, the statute being considered is a penal and criminal one, and as such is to be strictly construed. Howell v. Stewart, 54 Mo., 400; Kritzer v. Woodson, 19 Mo., 327; Fusz v. Spaunhorst, 67 Mo., 256; U. S. v. Wilberger, 5 Wheat., 76; Such statutes are tó be strictly construed — that is, construed strictly in those parts- which are against defendants, but liberally construed in those which are in their favor; that is, for their ease or exemption. No person is to be made subject to such statutes by implication; and, when doubts arise concerning their interposition, such doubts are to weigh only in favor of the accused. Bish. St. Crimes [2 Ed.]. Secs. 193, 194, 277.” Furthermore, the proof of a game of poker is defective. None of the witnesses swore positively to such a game, but the testimony at most showed men seated around a table playing for chips and exchanging money for chips and that one of them was heard to say “ace full” (full de ases). The — 246 — elaborate explanation by one of the witnesses that “ace full” belongs to the game of poker does not exclude the possibility of that phrase being, as appellant maintained, the terminology of another game. However, the principal ground for this decision is the failure of either the complaint or the proof to show a prohibited game. The judgment must be reversed. Reversed. Chief Justice Hernández and Justice Aldrey concurred. Mr. Justice del Toro signed, stating that he concurred in the judgment. Mr. Justice MacLeary dissented.