CHAPTER XXXI. CRIMES AGAINST PUBLIC POLICY, PUBLIC PEACE AND PUBLIC HEALTH. § 471. Lotteries and gaming or gam- $ 483. Dueling-Sending a challenge § 471. Lotteries and gaming or gambling-What constitutes.Gaming or gambling is a misdemeanor by statute in many states. Under such statutes it is, of course, always necessary, in order to sustain a conviction, to prove the necessary constituents of the crime, i. e., the element of chance in the game itself, and that a wager was actually made. A game of chance may be defined as one in which the result is determined by luck or lot, and not by adroitness, practice, skill, or judgment in play, such as, for example, cards,1 dominoes,2 bagatelle,3 bowls,* baseball, dice throwing," 1 Drawpoker, Shreveport v. Bowen, 116 La. 522, 40 So. 859; State v. Mathias, 206 Mo. 604, 105 S. W. 604, 121 Am. St. 687n. 2 Harris v. State, 31 Ala. 362. 3 919. 5 Neal's Case, 22 Gratt. (Va.) 917, 557. State v. DeBoy, 117 N. Car. 702, 23 S. E. 167; Jones v. State, 26 Ala. 155 or keno. Such games are gambling when played for money or other valuable thing. And generally, betting on elections, horse races, a coin in the slot machine,10 shooting matches," billiards, or other game of skill, is gambling under the statute.12 § 472. Evidence to prove manner of playing.-The jury are not presumed to know how an unlawful game is played, and the mode of playing may be explained to them by professional players as expert witnesses.13 Such testimony is not indispensable. Any witness may describe a game he has seen, though he has only played it twice, and seldom seen it played, and the depth and extent of his knowledge and experience are relevant to diminish or increase the value of his evidence.15 7 Miller v. State, 48 Ala. 122. Sharkey v. State, 33 Miss. 353, 355; Commonwealth v. Kennedy, 15 B. Mon. (Ky.) 531, 533; Commonwealth v. Wells, 110 Pa. St. 463, 467, 1 Atl. 310. Contra, Hickerson v. Benson, 8 Mo. 8, 40 Am. Dec. 115. State v. Falk, 66 Conn. 250, 33 Atl. 913; Debardelaben v. State, 99 Tenn. 649, 42 S. W. 684; People v. Weithoff, 51 Mich. 203, 16 N.. W. 442, 47 Am. 557; Watson v. State, 3 Ind. 123, 124; Redman v. State, 33 Ala. 428. A horse race is not a game under a statute making it criminal to bet on a game. State v. Vaughan, 81 Ark. 117, 98 S. W. 685, 118 Am. St. 29, 7 L. R. A. (N. S.) 889n; as to bookmakers' booth, Miller v. United States, 6 App. D. C. 6. 10 14 sence satisfactorily accounted for. Anderson v. State (Tex., 1897), 39 S. W. 109. A poolroom where betting is done on horse races is a gaming house and a nuisance at common law. State v. Nease, 46 Oreg. 433, 80 Pac. 897; though not productive of any disorder. Commonwealth v. Huber, 126 Ky. 456, 104 S. W. 345, 31 Ky. L. 929. Evidence of sale of lottery ticket, 3 L. R. A. 404. 18 State v. Behan, 113 La. 701, 37 So. 607; Commonwealth v. Adams, 160 Mass. 310, 312, 35 N. E. 851. 14 Nuckolls v. Commonwealth, 32 Gratt. (Va.) 884, 887; Miller v. Commonwealth, 117 Ky. 80, 77 S. W. 682, 25 Ky. L. 1236. 15 One witness may testify he saw the defendant conduct a game for Lang v. Merwin, 99 Me. 486, 59 money, describing it in detail, and Atl. 1021, 105 Am. St. 293. another may then state it was a cer"Myers v. State, 3 Sneed (Tenn.) tain game, though the latter may have 98, 106, 107. "The charge of selling lottery tickets is sufficiently proved by evidence that the defendant received money for them, sent for them and received a commission for his trouble. The ticket itself ought to be produced or its ab seen the game played only two or three times. People v. Sam Lung, 70 Cal. 515, 517, 518, 11 Pac. 673. The courts will take judicial notice of the meaning of the words "gift enterprise,” Lohman v. State, 81 Ind. 15, 18, and of the use of billiard tables for 16 § 473. The bet or wager-Playing in public.-It must be proved that a bet or wager was made, whether the game be one of chance or of skill, and that the stake had value intrinsically; or that, by agreement among the bettors, it represented value.“ The amount and character of the articles wagered are immaterial. A conviction of gambling will be sustained by proof of playing for chips or checks,18 for the price of refreshments,19 or for the hire of the table or other apparatus.20 The making of the wager may be inferred from an offer and acceptance, and neither of these need be proved to have been made orally or in express terms."1 Both may be inferred by the jury from evidence that the accused placed money or chips upon a table where a game was in progress, without objection from other players, 22 or stated he would pay the amount wagered after the game was ended,23 and even from evidence that the accused was sitting and playing at a table or in a circle around a box upon which money and gambling devices, such as cards and a faro box, were lying.25 gambling purposes, State v. Price, 12 Gill & J. (Md.) 260, 37 Am. Dec. 81; that "craps" is a game played with dice, Sims v. State, I Ga. App. 776, 57 S. E. 1029; but not of the fact that policy is a game of chance, State v. Sellner, 17 Mo. App. 39. Prima facie evidence of gaming, 36 Am. St. 685; illegality of contract for future delivery, 1 Am. St. 764; common gamblers, Elliott Evidence, § 3008; minors playing, § 3010; lotteries, 3011; variance, § 3007. 16 Middaugh v. State, 103 Ind. 78, 80, 2 N. E. 292; Jackson v. State (Tex., 1894), 25 S. W. 773; Jackson v. State, 117 Ala. 155, 23 So. 47; Proctor v. Territory, 18 Okla. 378, 92 Pac. 389; Barker v. State, 127 Ga. 276, 56 S. E. 419. 17 Oder v. State, 26 Fla. 520, 522, 7 So. 856; State v. Bishel, 39 Iowa 42. 18 Porter v. State, 51 Ga. 300, 301; Ransom v. State, 26 Fla. 364, 7 So. 860. 465, 466; Hitchins v. People, 39 N. Y. 454, 456; Walker v. State, 2 Swan (Tenn.) 287, 290, 291; Hopkins v. State, 122 Ga. 583, 50 S. E. 351, 69 L. R. A. 117. 20 Hall v. State (Tex., 1896), 34 S. W. 122; Alexander v. State, 99 Ind. 450, 451; Hamilton v. State, 75 Ind. 586, 587; Bachellor v. State, 10 Tex. 258, 261; Middaugh v. State, 103 Ind. 78, 79, 2 N. E. 292. 21 Rainbolt v. State, 51 Tex. Cr. 153, ΙΟΙ S. W. 217; Elliott Evidence, 83004. 22 Thompson v. State, 99 Ala. 173, 13 So. 753; Goslin v. Commonwealth, 121 Ky. 698, 90 S. W. 223, 28 Ky. L. 683. 23 State v. Leicht, 17 Iowa 28. 24 Butler v. State, 2 Ga. App. 623 58 S. E. 1114. 25 State v. Andrews, 43 Mo. 470, 471; State v. Boyer, 79 Iowa 330, 44 N. W. 558; St. Louis v. Sullivan, 8 Mo. App. 455, 457, 458; Cohen v. State, 17 Tex. 142. Cf. Middaugh v. State, 103 Ind. 78, 80, 2 N. E. 292; Harmon v. State, 32 Publicity is often by statute essential to make it a crime to bet on a game or sport, and must be shown. The court cannot take notice that certain places are public, under a statute which forbids gambling in public places.26 Whether a game is public, or whether it is carried on in a building or place which is within the prohibition of the statute is a question for the jury to determine2" on all the circumstances.20 Evidence that a game was carried on in a shop,30 or public road, in the office of a physician," magistrate, or broker, aboard a steamboat in a navigable stream, or in a barn,36 will sustain an allegation that a game was played in public. Where the place where the gambling took place is not per se a public place, the burden of proof is upon the prosecution to prove that it is a public place. Proof that prior to the occasion in question other games had been played in that place is relevant to show that it is a public place. 35 120 Ga. 197, 47 S. E. 547. Evidence that other persons, present with the accused in the room where gambling is alleged to have taken place, were playing or betting, is relevant; and perhaps indispensable, as the defendant could not play a game alone or bet with himself. Thompson v. State, 99 Ala. 173, 13 So. 753, 754. See Griffin v. State, 2 Ga. App. 534, 58 S. E. 781. 2 Grant v. State, 33 Tex. Cr. 527, 27 S. W. 127. "In Texas the playing of cards at any place not a private residence is prohibited, Fallwell v. State, 48 Tex. Cr. 35, 85 S. W. 1069, as for example in a schoolhouse, Mapes v. State (Tex. Cr.), 85 S. W. 797. See also, Waggoner v. State, 49 Tex. Cr. 260, 92 S. W. 38. 28 Lewis v. State, 140 Ala. 126, 37 So. 99; Ferrell v. Opelika, 144 Ala. 135, 39 So. 249. The yard of a boarding house. Walker v. State (Ala.), 41 So. 176; a lodging house, Winston v. State, 145 Ala. 91, 41 So. 174; or a 38 35 Dickey v. State, 68 Ala. 508. 36 Huffman v. State, 29 Ala. 40. Nickols v. State, III Ala. 58, 20 So. 564. See, also, Downey v. State, 110 Ala. 99, 20 So. 439; Gomprecht v. State, 36 Tex. Cr. 434, 37 S. W. 734. 39 Winston v. State, 145 Ala. 91, 41 So. 174; Dennis v. State, 139 Ala. 109, 35 So. 651; Lee v. State, 136 Ala. 31, 33 So. 894; Elliott Evidence, § 3004. 40 § 474. Accomplice evidence.-The rules governing the introduction and employment of this species of evidence have been often modified by statute, so far as the offense of gambling is concerned. Thus it has been enacted that a conviction may be had upon the uncorroborated evidence of an accomplice, and that he shall not be excused from testifying because his evidence may incriminate him. No person is an accomplice unless proved to have actually taken part in the game or to have had a bet depending on its result.*2 41 43 § 475. Keeping gambling houses.-Keeping a public gambling or gaming house, or keeping or exhibiting implements for gambling was indictable as a nuisance at common law. It is now generally a statutory misdemeanor. The statutes differ greatly in their details and should invariably be consulted to ascertain what facts are essential to be proven. That a certain house or other place was maintained or kept as a public gaming house may be shown by proof of its general reputation in the community by the reputation of its inmates and frequenters as professional gamblers and by the fact that gambling paraphernalia were found there. Proof that the accused had actual custody, control or possession of a public gambling house, that he presided over a gambling table and admitted persons to the house, or the fact that he derived or expected to derive gain or profit from it, is always relevant and may justify an inference that he was keeping it in the statutory sense. Proof of a single act of possession 44 39 See ante, §§ 69-75. 40 46 Wright v. State, 22 Tex. App. 670, 3 S. W. 346; Elliott Evidence, § 3006. 41 Cheesum v. State, 8 Black f. (Ind.) 332, 44 Am. Dec. 771. See Moore v. State, 97 Ga. 759, 25 S. E. 362. ante, § 72. See 202, 87 S. W. 152; State v. Oswald, 59 Kan. 508, 53 Pac. 525; Strong v. State, 52 Tex. Cr. 133, 105 S. W. 785; State v. Oldham, 200 Mo. 538, 98 S. W. 497; Elliott Evidence, § 3009. *State v. Hoyle, 98 Minn. 254, 107 N. W. 1130. 45 Groves v. State, 123 Ga. 570, 51 S. E. 627. 40 Lettz v. State (Tex., 1893), 21 S. W. 371; Harman v. State (Tex.), 22 S. W. 1038; Wren v. State, 70 Ala. 1, 4; Nelson v. United States, 28 App. D. C. 32; Robbins v. People, 95 Ill. 175, 178; Commonwealth v. Clancy, |