Wortham v. State

Cooper, J.,

delivered the opinion of the court.

Code 1880, § 1121, provides that, “ if any person who sells vinous or spirituous liquors shall permit card playing, dice throwing, or other game of chance on his premises, or in any adjoining apartment subject to his control, he shall, on conviction, be subject to a fine of five hundred dollars and imprisonment for not more than six months, or to either such fine or imprisonment.” The appellant, who is a vendor of vinous and spirituous liquors, was indicted for permitting *181 on his premises a certain game of chance, to wit, billiard playing, and from a conviction on this indictment he prosecutes this appeal. On the trial no evidence was introduced by the State, except that the defendant was a dealer in spirituous liquors, and permitted a game of billiards to be played in the building occupied and used by him in the prosecution of his business. The defendant on his part offered evidence for the purpose of proving that the game of billiards is not a game of chance, but one of skill, to the introduction of which evidence the State objected, and the objection was sustained and the evidence excluded. It is apparent that the learned judge below construed the statute as prohibiting the seller of vinous and spirituous liquors from permitting on his premises the playing of any game, or, that the game of billiards is included in the words, “ other game of chance.”

The evil intended to be remedied by the statute was that arising from a combination of dram-drinking and sport in places of public resort, and it may be that the intention of the legislature was to prohibit the playing of any games of any character at places where liquors are sold; but this intention must be discovered by the courts from the words used in the law, and it is only where from the language used a doubt arises that they are at liberty to resort to construction. When as in this case the words of the statute are unequivocal, and convey to the mind a distinct and single meaning, it is not in the power of the courts to substitute other or different words, or to put upon the statute a construction which necessitates the elimination of some word from it, and thus substitute for what the legislature has said what they think it may have desired to say, or what it ought to have said to give full relief against the evil it intended to remedy. We are bound by the law as written, and by the terms of the statute under consideration the playing only of such games as are games of chance is prohibited on the premises where liquors are sold. It may be true that in the playing of all games there is, to a greater or less degree, an element of chance, in the sense that an unexpected result follows the peculiarly skilful or negligent act of the player, but this is not the chance which brings the game within the condemnation of *182 the statute, for in such cases the chance, or, more properly, the accident, occurs occasionally, and is not inherent in the game. The games included in this statute, we think, are those only in which the game itself is decided, or some advantage therein is lost or gained, by the player or some third person doing an act which is required by some rule of the game to be done, the result of which is determined.by chance and not by the skill of the actor, and which is required to be done because of the accidental character of its consequences, to the end that chance may enter as an element in the game. It is the character of the game, and not the skill or want of skill of the player, which brings it into or excludes it from the prohibition of the statute. Such we understand to be the conclusion of the Supreme Court of North Carolina, in the case of State v. Gupton, 8 Ired. 271 ,-cited by the Attorney General, which is the only direct adjudication we have been able to find upon the question. The evidence on the part of the State was insufficient to authorize the verdict, and the court erred in excluding the testimony offered by the defendant.

Reversed and remanded.