Christopher v. State

Appellant was convicted on an information charging him with keeping and exhibiting a gaming device for the purpose of gaming, and his punishment assessed at a fine of $25, and imprisonment in the county jail for ten days, and he prosecutes this appeal.

Appellant made a motion to quash the information on the ground that it charged no offense, in this: that it does not allege that the alleged bank or device was kept or exhibited for the purpose of gaming. The language of the information in this connection is as follows: That appellant "did then and there unlawfully keep and exhibit a bank and a gaming device for the purpose of gaming," etc. We think it sufficiently alleges that said gaming device was kept and exhibited for the purpose of gaming.

Appellant contends that the gaming device is not one of the games prohibited by the statute, (1) because said slot machine is of recent invention, and was not known when our statutes on the subject were passed, and hence could not have been contemplated by the Legislature; (2) that the slot machine is a mere automaton, that keeps and runs itself, and is not the subject of being kept or exhibited for the purpose of gaming by any one.

With regard to the first contention, our statutes on the subject of gaming are very comprehensive. Article 382, Penal Code, enumerates a number of games, the exhibition of which for the purpose of gaming, is inhibited by statute. Article 383 is as follows: "It being intended by the foregoing article to include every species of gaming device known by the name of table or bank, of every kind whatever, this provision shall be construed to include any and all games which in common language are said to be played, dealt, kept, or exhibited." Article 384, after enumerating certain other games, provides: "But the enumeration of these games specially shall not exclude any other properly within the meaning of the two preceding articles." Article 385 provides that prosecutions can be maintained without giving the name or description of the gaming device in the indictment. Now, the fact that the slot machine, a full description of which is given in the statement of facts, had not been invented when said statutes were passed, affords no reason why the same is not comprehended within the meaning of said statutes. Our statutes on this subject were evidently framed not only to cover every gambling device then known, but all others that might be invented or become known.

As to whether this is one of the gaming devices inhibited by statute depends both on its construction and use. We gather from the statement of facts that, although the machine was an automaton, it was very skillfully constructed for the purpose of gaming. It not only received the bets, but decided them, and paid the money to itself or to the winner, without the intervention, for the time being, of the keeper or exhibitor. But we also gather that this machine was put in place and arranged and set in motion, and that when it was out of order it was rearranged and repaired, so it could operate. It was so skillfully constructed to serve its purpose that, according to the testimony, "the chances were against the outsiders as four in favor of the machine to one against it." It also occurs that the machine did not keep the money it won, but that the profits were divided between appellant and his copartner. We think this device comes fully within the meaning of the definition given by Judge Roberts in the Stearnes' case, 21 Tex. 693, so highly eulogized by appellant's counsel: (1) It embodies all the elements of a game of skill or of chance, or of skill and chance, with the chances, however, in favor of the exhibitor, which is usual in games of this character. (2) It has a keeper in the person of the owner or exhibitor, who operates and runs it for profit (3) It is based on the principle of the one against the many; the keeper or exhibitor, through the machine, indirectly receives the bets and pays out the money. (4) The machine is exhibited by the owner or exhibtor for the purpose of obtaining bettors. If not put in place and wound up, or arranged to run, it would not have displayed or exhibited itself. The purpose of its display is to obtain bettors. The fact that it is novel in character does not relieve it from the operation of the statute; for, in the language of Judge Roberts, "any change, cover, disguise, or subterfuge in any such ingredients, for the purpose of evasion, would not change the character of the game." In our opinion the statement of facts shows a gaming device such as is so aptly described in Stearnes' case, supra. The judgment is affirmed.

Affirmed.