McCOMB, J., Dissenting. I dissent.; .It is my view that bridge is a “game of chance.”
• Defendant contends that the phrase “game of chance” in Ordinance 461 is vague, indefinite and uncertain in meaning and denies her due process of law and equal protection under Amendments V and XIV of the United States Constitution and sections 13 and 19, article I, of the California Constitution. ' The phrase “game of chance,” however, has an accepted ’ legal meaning. It appears throughout the English language as a means of expressing a concept used by legislatures of various jurisdictions in statutes, by courts of various jurisdictions as an analytical tool in ascertaining what is and what is not a “lottery,” or “gambling or gaming device’/ (cf. Commonwealth v. Lake, 317 Mass. 264 [57 N.E.2d 923] ; Boies v. Bartell, 82 Ariz. 217 [310 P.2d ,834]), and by the people of various jurisdictions in their .constitutions (cf. Neb. Const., art. III, § 24; Utah Const., art. VI,. § 28). ;
The character of the game, and not -the skill or want of skill of the player, is what determines whether a game is a “game of chance” or a “game of Skill.” .The test is not whether the game contains an element of chance or an element of skill but what is the dominating element that determines the result of the game; and a game does not cease to be a game of chance because it calls for the exercise of skill. (People v. Welti, 179 Misc. 76 [37 N.Y.S.2d 552, 555]; State v. Stroupe, 238 N.C. 34 [76 S.E.2d 313; 316-317] ; People v. Lavin, 179 N.Y. 164 [71 N.E. 753, 755] ; State v. Gupton, 30.N.C. (8 Ired. L.) 271, 273-274; cf. Brown v. Board of Police Comrs., 58 Cal.App.2d 473, 479 [136 P.2d 617]; People v. Settles, 29 Cal.App.2d Supp. 781, 878 [6] [78 P.2d 274] ; see also, definition of “game of chance.’.’ in Webster’s New Internat. Dict. (3d ed. 1961), p. 933.)
In Encyclopedia Americana (1957) at .page 529, it is stated“Duplicate . Bridge.—This is the form of bridge, either auction or.contract, in which the same..hand is played "moire 'i/hari'once. It is the form played in. tournaments, since [9]it reduces to a minimum the element of luck, scores being based on a comparison of the results achieved with the same cards. Ely Culbertson, Bridge Authority and Author.” (Italics added.)
It is evident that if the element of luck is reduced in duplicate bridge, it is much higher in the type of bridge that is the subject of the present case.
Certainly in duplicate bridge it may be expected that in a series of games the more skillful players should ordinarily end with higher scores than the less skillful. Even this result, however, is by no means certain, and in other than duplicate bridge the element of chance may well be predominant in many a match, particularly when the opposing players are of somewhat equivalent skills.
A criminal statute must be definite enough to provide a standard of conduct for those whose activities are proscribed, but reasonable certainty in view of the conditions is all that is required. (People v. McCaughan, 49 Cal.2d 409, 414 [317 P.2d 974] ; People v. Hallner, 43 Cal.2d 715, 720 [6] [277 P.2d 393]; In re Clarke, 149 Cal.App.2d 802, 806 [8] [309 P.2d 142].)
As stated in Kelly v. Mahoney, 185 Cal.App.2d 799, 804 [11] [8 Cal.Rptr. 521] : “The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. ’ ’
The fact that there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense. (Roth v. United States, 354 U.S. 476, 491 et seq. [77 S.Ct. 1304, 1 L. Ed.2d 1498] ; United States v. Harriss, 347 U.S. 612, 618 [74 S.Ct. 808, 98 L. Ed. 989] ; Jordan v. DeGeorge, 341 U.S. 223, 231 et seq. [71 S.Ct. 703, 95 L Ed. 886]; United States v. Petrillo, 332 U.S. 1, 7 [67 S.Ct. 1538, 91 L. Ed. 1877].)
Under these rules, the language, of the ordinance is sufficiently definite to give adequate warning as to the proscribed conduct.
Defendant also contends that the state has occupied the field with respect to gambling and that the ordinance is invalid on this ground.
Gambling is not a matter which comes within those municipal affairs as to which local regulations are superior to state statutes. (In re Portnoy, 21 Cal.2d 237, 239 [1] [131 P.2d [101]].) Local regulations pertaining to gambling are therefore invalid if they are in conflict with state legislation on the subject. (Cal. Const., art. XI, § 11.)
It is now settled that if the state has occupied a particular field, any local regulation therein is in conflict and hence invalid. (Abbott v. City of Los Angeles, 53 Cal.2d 674, 682 [9] et seq. [3 Cal.Rptr. 158, 349 P.2d 974]; cf. In re Lane, 58 Cal.2d 99, 102 [2] [22 Cal.Rptr. 857, 372 P.2d 897].) Accordingly, if the field of gambling has been preempted by the general law, a local municipal ordinance with respect thereto is invalid.
The Legislature has not by express language indicated whether or not it has intended to preempt the field of gambling. In determining the legislative intention in this respect, however, we must give due regard to the fact that this court, as long ago as 1900, held in In re Murphy, 128 Cal. 29 [60 P. 465], that a municipality could by local ordinance prohibit all games of chance played for money other than those covered by section 330 of the Penal Code, and no action has been taken by the Legislature to increase the scope of that section or to evidence in any way an intent to exclude local regulation in this field.
The failure of the Legislature to so act during a period of over 60 years in the face of such a ruling, which has been consistently followed in other gambling cases (In re Portnoy, supra., 21 Cal.2d 237, 239 [1] [131 P.2d 1] ; In re Farrant, 181 Cal.App.2d 231, 232 [la] [5 Cal.Rptr. 171] ; Remmer v. Municipal Court, 90 Cal.App.2d 854, 856 [2] [204 P.2d 92] [hearing denied by the Supreme Court] ; see also Ex parte McClain, 134 Cal. 110, 111 [66 P. 69, 86 Am.St.Rep. 243, 54 L.R.A. 779] ; Sternall v. Strand, 76 Cal.App.2d 432, 434 [la] et seq. [172 P.2d 921] [hearing denied by the Supreme Court] ; In re Lawrence, 55 Cal.App.2d 491, 498 [7] et seq. [131 P.2d 27]), constitutes in itself confirmation of an intention not to preempt the field, (In re Farrant, supra, at page 238 [6].)
Furthermore, when the 1962 Legislature added section 337s to the Penal Code* prohibiting draw poker, it made the prohibition operative only in those counties where the electorate should so determine, expressly confirming the right of any other county, and the cities therein, to enact ordinances prohibiting, restricting, or regulating the playing of draw [11]poker. This is additional evidence that the Legislature has not intended to preempt the field of gambling.
Accordingly, we should hold that in the field of gambling there is room for local regulation in the form of additional reasonable requirements not in conflict with provisions of the general law. (Cf. Pipoly v. Benson, 20 Cal.2d 366, 370 [4] et seq. [125 P.2d 482, 147 A.L.R 515].)
In In re Lane, supra, 58 Cal.2d 99, 103 [5], and the cases there relied on, we found, on the basis of the extensive coverage of the subject matter under consideration, that the Legislature had intended to occupy the particular field. In those cases, however, there were no additional guides to determine what the Legislature intended, as there are in the present case and as existed in prior cases such as Natural Milk etc. Assn. v. City & County of San Francisco, 20 Cal.2d 101, 110 [2c] et seq. [124 P.2d 25], where although the state legislation was comprehensive, the statute expressly authorized local regulation.
To the extent that a local ordinance covers gambling activities condemned by the Penal Code, it is in conflict with the general law and hence invalid; but if invalid portions are separable from portions which are valid, the latter will be upheld. (In re Murphy, supra, 128 Cal. 29, 31; In re Farrant, supra, 181 Cal.App.2d 231, 236 et seq.; Remmer v. Municipal Court, supra, 90 Cal.App.2d 854, 856 [2] et seq.; cf. In re Portnoy, supra, 21 Cal.2d 237, 240 [2] et seq.)
Since the game of bridge is not condemned by the Penal Code, the ordinance in question, to the extent it may prohibit such game, does not conflict with provisions of the general law and is therefore a valid enactment.
I would deny the writ of habeas corpus.
Schauer, J., concurred.
By Assembly Bill No. 9.