Stearnes v. State (21 Tex. 692, 1858)

Roberts, J.

This is a prosecution under the 412th Article of the Penal Code, which reads as follows, to-wit:

“ Art. 412. If any person shall keep or exhibit for the purpose of gaming any gaming table or bank, of any name or description whatever, or any table or bank used for gaming which has no name, or shall be in any manner interested in keeping or exhibiting such table or bank at any place whatever, he shall be fined not less than twenty-five dollars nor more than one hundred dollars.”

The indictment charged that the defendant “ did keep a gaming table for the purpose of gaming;” and the proof showed that he exhibited a game called Grand Raffle, which is not one of the games mentioned specially in the Code in Art. 414. The questions presented are :

1st. Is this an offence ?

2nd. Is it the raffle referred to in the Code in Art. 406 ?

3rd. May there be a gaming device, kept for gaming, which is not included in Art. 412 of the Code ?

A game is a trial of skill, or of chance, or of skill and chance, between two or more contending parties, according to some rule by which each one may succeed or fail in the trial ; of skill, as chess and billiards; of chance, as raffle and simple lottery ; of chance and skill combined, as back-gammon, whist, faro, &c„

The instruments, by which the chance may be developed, and upon and about which the skill may be exercised, are various—as cards, dice, balls, figures, letters, chess-men, checks, &c. ; and these may be operated on singly, or in double, trible, or even quadruple combinations.

Betting upon a game is the mutual agreement and tender of a gift of something valuable, which is to belong to the one or to the other of the contending parties, according to the result of such trial.

The ordinary rules of the game (where there are no special rules stipulated) constitute the terms of the agreement, and define the contingency upon which one or the other is to receive the gift. The staking of the money, or other property, is an ostensible adoption or sanction of such agreement, and also a conditional tender. When the trial is accomplished the result tells who is the winner.

This betting upon games is the evil which our law seeks to eradicate. This is endeavored to be done, not by prohibiting all games from being indulged in, but only particular classes of gaming which are thought to be most pernicious. Whether this broad margin, in the schedule of games, is left exempt from legislative reprobration from an apprehension of entrenching too largely upon the natural liberties of the citizen, or because they do not inflict upon the community calamities of sufficient magnitude to require punitory regimen, or because they are conceived to be innocent amusements, it is wholly immaterial—they are exempt. It is also a matter to be especially noted, that although betting upon games is the evil sought to be reached, there is but one single instance in which it is necessary to allege a betting, or to prove it either, on the part of the prosecution. (Penal Code, Art. 418-411.) In all other cases the sword of the law, when it strikes at all, thrusts at the shield and cover of the evil, the game. It is important in the interpretation and the administration of the law to keep in view the distinction between a game and betting on a game, or gaming, as it is called in the Code.

The prohibited games are divided into two classes, to-wit: 1st. Playing cards in particular places. 2nd. Gaming tables and banks everywhere. The first is merely a trial of skill or chance, one or both, between two or more persons generally each for himself or with partners, according to some rule by which each one may succeed or fail in the trial, and in which cards are the instruments of developing the chance or skill, or both ; and when played at particular places mentioned in the Code. No further reference will be made to the first class than is necessary in illustration of the second, as it is not now under investigation.

The second class is the species of games that the Legislature have most sedulously sought to repress. They have prescribed a general form of indictment without any other discription of name, quality," or incident than the keeping or exhibiting a gaming table or bank. (The offence of betting on such game by the betters is not now to be spoken of.) Such general form is intended to include every sort of such game, however variant from each other may be the particular facts constituting the offence in each case. In England it has been made sufficient to charge a person simply with having committed murder. In such cases, what facts constitutes murder in one case, or keeping a gaming table in the other, is matter of law to be expounded by the Judge; and whether-those facts exist or not, is matter of fact to be found by the jury. Each must be expounded in the same way, by a discription or exposition of their essential elements.

In common with the first class, these games or gaming tables and banks come under the general' definition of a game. There all necessary similarity ceases. As there is no specific definition of the offence given, it is important to ascertain what are the constituent elements of the games that are specified in the Code as coming under the second class, as faro, monte, &c., as well as to see how far the Legislature have expressed their intention.

The characteristic principle or element of the gaming tables or banks specified in the Code as faro, monte,