Blewett v. State

Gaming. To constitute the offense of gaming under the statute, one or other of the parties must gain by the game. But in a game of billiards, in which the loser pays a fee to the owner of the table for its use, neither of the players gain anything. M-go, such a game of billiards is not gaming under a statute.

Error to Lowndes circuit court. Harris, J. In this case there was no bet or wager on the result of any game of chance. It was a game of billiards, played in -a regularly licensed billiard saloon, and according to the rules of such saloon the loser of the game was required to pay a fee to the owner for use of the table; and this cannot amount to gaming. At common law gaming houses were indictable as a public nuisance; but unless restrained by statute, ordinary -wagers, or betting, were tolerated as being for amusement or recreation. 1 Ohitty’s Cr. Law, 677; 1 Buss. Cr., 300, 406; Yanderworker v. State, 13 Ark., 700 ; Norton v. State, 15 Ark., 72. “ It seems that by common law, the playing at cards, dice, &e., when practised innocently, and as a recreation, the better to fit a person for business, is not at all unlawful, nor punishable as any offense whatever.” 4 Bac. Abr. (Am. Ed.), title Gaming, A., 17. A billiard-table was not indictable at common law, unless it was used for the purpose of gambling. Butler’s case, 1 City Hall Recorder, 67. Billiards and bowling are frequently used for the purpose of amusement and recreation, and it is customary for the losing party to pay the proprietor a reasonable compensation for the use of a table, alley or saloon; and paying for such game by the loser is not gaming within the meaning of the law. People v. Sergeant, 8 Cow., 140; Lewis’ TJ. S. Cr. Law, 341, 343, 344; Waterman’s Archbold, 609, 610, 611; Williams v. State, 12 S. & M., 38; 2 Dana, 298 ; 7 Yerger, 526 ; 5 ib., 160; Anthony v. State, 4 Humph., 85 ; 8 Blackf., 403 ; Elale v. State, 8 Texas, 171, 172 ; 4 Indiana, 560. The rule of the game was a matter of fact, which the court bad no right to decide. Armstrong v. State, 4 Blackf., 247, 248, 249; Montee v. Commonwealth, 3 J. J. Marsh., 134 ; Glasscock v. State, 10 Missouri, 509, 510. The offense was committed within the corporate limits of the town of Columbus. Acts 1854, p. 438, § 8; Legoir v. State, 8 S. & M., 699; Montgomery v. State, Opinion Book “ G,” 4.