People v. Lung

Foote, C. The defendant, Sam Lung, was accused by information of having carried on and conducted the game of tan for money, etc.; he was convicted as charged by a jury, and from the judgment against him, and an order refusing a new trial, he appealed.

As we understand section 330 of the Penal Code, it means that every person whatsoever who deals, plays, or carries on, or opens or causes to be opened, or who conducts, certain games therein mentioned, “ for money, checks, credit, or any other representative of value, is punishable by fine of not less than two hundred nor more than one thousand dollars, and shall be imprisoned in the county jail until such fine and costs of prosecution are paid, such imprisonment not to exceed one year”; and that “ every person who plays or bets at or against any of said prohibited game or games is guilty of a misdemeanor.”

That being so, it was not material that the information (which charged that the defendant “ did willfully and unlawfully carry on and conduct a certain game of tan, then and there played for money,” etc.) should have stated that he did so as employee or owner of such game.

The offense defined in the first clause of the section supra is not limited to those who, as owners or employees, conduct or carry on any of the prohibited games for money; it embraces all persons who carry on or conduct such games, whether as owners, employees, or in any other capacity, but it does not include any one who plays or bets at or against such games, they being included in the second clause of the said section.

The legislature did not intend to declare by the first clause that no one except owners or employees connected with such games should be punishable thereunder; it meant to include all persons who might thereafter commit the acts there prohibited. And the demurrer to the information was properly overruled.

It was unnecessary, in order to convict the defendant of [517]the offense charged, that it should have appeared in evidence that he was either an owner or employee of a tan game, conducting or carrying on the same for money or its equivalent; nor was it necessary that the depositions taken on the preliminary examination should have evidenced the character which the defendant then and there assumed.

If it was proved before the committing magistrate, and afterward before the trial court, that he was a person carrying on or conducting such a game for money or its equivalent, it was sufficient to warrant his being tried by the Superior Court, and convicted by the jury. And therefore the court did not err in refusing to set aside the information on any ground covered by the motion therefor.