People v. Carroll

California Supreme Court Aug 5, 1889 No. No. 20540Published

Before: McFarland, Thornton, Works

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Holding. The court held that the information was insufficient because it failed to allege that the game was played for money, checks, credit, or other representative of value, as required by the statute.

Issues

Whether an information charging a defendant with conducting a banking game is sufficient if it fails to allege the game was played for money or value.
Whether the statutory term 'banking game' is unconstitutionally vague or indefinite.
Whether the trial court erred in allowing witness testimony to define the legal meaning of a 'banking game.'

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The information does not charge that the game was played for money, but that defendant conducted it for money.”

“To constitute it an offense to conduct the game, it must be “played for money, checks, credit, or any other representative of value.””

“For the insufficiency of the information, the judgment and order are reversed, and the cause remanded.”

Synopsis

Criminal Law—Banking Game — Information. — An information charging a defendant with conducting a hanking game for money, when the statute requires in order to constitute an offense that it be “played for money,” etc., charges no offense.

Id. —Validity of Statute. —Section 330 of the Penal Code, making it an offense to play a banking game for money, etc., is not invalid because the designation of the offense is too 'general and indefinite, and an information following the general language of the statute is sufficient.

Id.—Definition of Banking Game — Question of Law — Expert Evidence. — A banking game is a game conducted by one or more persons where there is a fund against which everybody has a right to bet, the owner of the bank being responsible for the payment of all the funds, taking all that is won, and paying out all that is lost. The definition of such game is a question of law, and expert evidence should not be allowed to determine the definition, but such evidence is harmless if the definition given is correct. But a witness who knows the game may testify in general terms what the game he witnessed was, or if not familiar with it, may describe it, and the court should instruct the jury as to what constitutes the game charged.

Id. — Venue of Offense — Review on Appeal. — When the transcript on appeal does not purport to contain all the evidence, and there is no specification of insufficiency of the evidence to prove the venue, the record does not present the question as to whether the venue of the offense charged was proven.

Opinion — Works

Works, J. The information in this case charges as follows: “That said P. J. Carroll did, on the seventh day of October, 1887, at and in said county of Fresno, state of California, and prior to the filing of this information, willfully and unlawfully open, carry on, and conduct for money a certain banking game, played with a certain device, to wit, a wheel marked with numbers and colors, said game being then and there a banking game commonly known as the ‘ wheel of fortune,’ contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the state of California.”

The section of the code under which the prosecution was instituted provides: “Every person who deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rougeet-noire, rondo, tan, fan-tan, stud-horse poker, seven-and-a-half, twenty-one, or any banking or percentage game played with cards, dice, or any device, 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 [155]county jail until such fine and costs of prosecution are paid, such imprisonment not to exceed one year; and every person who plays or bets at or against any of said prohibited game or games is guilty of a misdemeanor.” (Pen. Code, sec. 330.)

The information charges no offense under this section of the code, or any other. To constitute it an offense to conduct the game, it must be “played for money, checks, credit, or any other representative of value.” The information does not charge that the game was played for money, but that defendant conducted it for money. It may be that those who were engaged in the game were playing for amusement, and paid the defendant a fixed sum, in no way dependent upon the result of the game, for conducting it. This would be within the allegations of the information, but it would not be a public offense or within the statute.

It is contended by the appellant that there could be no conviction for playing or conducting a banking game, if the information were sufficient in other respects, for the reason that the designation of the offense in the statute is too general and indefinite, and what constitutes a banking game is not generally known, and is not defined by the statute. The same might be said of the game of poker. Both games are no doubt known and understood by gamblers, and by many who are not gamblers. The game of poker may be known by a greater number of people, but neither, fortunately, are familiar to the public generally.

People v. Carroll

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Synopsis

Opinion — Works

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Concurrence — Thornton

Concurrence — McFarland

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