
    Randle Blewett v. The State of Mississippi.
    Criminal law : gaming. — It is not gaining, under the statute, for the loser at a game of billiards, played on a licensed table, to pay, by agreement of the parties, the fee due for the use of the table.
    In error from the Circuit Court of Lowndes county. Hon. William L. Harris, judge.
    The facts will be found sufficiently stated in the opinion of the court, and briefs of counsel.
    
      James T. Harrison and T. H. Crusoe, for plaintiff in error.
    The indictment charges that the defendant did “unlawfully play at a certain game at billiards, for money and certain valuable things, to wit, a certain bank bill, and a certificate of deposit,” &c.
    The playing, if proved, took place at a regularly licensed table, in the town of Columbus.
    There was no bet, or wager, unless the mere fact that, if the party beaten at the game pays the usual table-fee to the owner for the use of the table, it amounts, in law, to gaming.
    At the instance of the district attorney, the court instructed the jury, “ that if the jury believe, from the evidence, that the defendant played at billiards, under and knowing the rule that the loser of the game should pay the billiard-fee, and that was twenty-five cents, he is guilty of gaming, as charged, if it was done in the county within -next before the finding of the indictment.”
    Another instruction was given, limiting and confining such necessary “ knowledge” to the “ rule” of the “ players” at billiards; and still another, dispensing altogether with any knowledge of “the rule of the game,” and to this effect: “ If the jury believe, from the evidence, that the defendant played, as charged, at billiards, for the table-fee, which is twenty-five cents, he is guilty.”
    To rebut these charges, the defendant then asked the court to instruct the jury, “ that it is lawful to play at billiards at a licensed table, under the statute, and it is not unlawful (nor is it betting) for the losing party to pay to the proprietor, or keeper, the lawful, usual, and customary fees for the use of, or the playing on the table. The license gives a right to, and makes lawful the keeping of such table for play, and it is not unlawful to pay the fees and customary charges therefor.”
    This the court refused to give.
    1. In Montee v. The Commonwealth, 3 J. J. Marshall’s R. 134, the chief justice, in delivering the opinion of the court, said: “ The courts do not judicially know the technics and appellatives of gamblers. Neither this court, nor any other court, knows what kind of game ‘ chuck-a-luck’ is, or whether it is a game of chance prohibited by law.”
    But in the present case, the learned judge who presided in the court below, by the instructions last above quoted, settled for the jury as “the rule” of the game, “that the loser of the game should pay the billiard-fee, and that to pay such fee, at a licensed table, is gaming.”
    What was left for the jury to decide ?
    And we had supposed, that where a billiard-table wa¡4 licensed by law for play, it was lawful to play at such table, and that paying the lawful fees to the owner was lawful. But the learned judge-in the court below, held the law to be, that if a person played at billiards, and complied with the -rules of the game, he was guilty of a misdemeanor, provided he played “under and knowing” the rule. It would seem that the learned judge supposed that the violation of law consisted in keeping, instead of breaking the rules of a lawful game, and doing it knowingly.
    At common law, common gaming-houses were indictable as a public nuisance; but, unless restrained by some express statute, ordinary wagers, or betting, were tolerated as, being for amusement or rehreation. 1 Chitty’s Cr. Law, 677; 1 Russ, on Cr. 300, 406; Vanderworker v. The State, 13 Arkansas R. 700; Norton v. The State, 15 Arkansas R. 72.
    And my Lord Bacon says that, “ it seems that, by the common law, the playing at cards, dice, &c., when practised innocently, and as a recreation, the better to fit a person for business, -is not at all unlawful, nor punishable as any offence whatever.” 4 Bacon’s Ab. (Am. ed.) title G-aming, A. p. 17.
    A billiard-table was not indictable at common law, unless it was used for the purpose of gambling. 1 City Hall Recorder, 67, Butler’s case.
    In Lewis’s United States Criminal Law, it is said in relation to the'Pennsylvania statute against “gambling,” that it does not extend to “ games which are useful in disciplining the mind, or exercising the body, and in which nothing is either lost by the one party, or gained by the other. Such games, when conducted with propriety, are neither forbidden by the common law nor by the statute. Billiards and bowling (the latter more commonly called ten-pins) 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 the table, alley, or saloon. In such case it was held by the Supreme Court of New York, in The People v. Sergeant, 8 Cowen R. 140, that paying for the table by the rub, is not gaming within the meaning of the law; that illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity.” Lewis’s U. S. Cr. Law, 341, 343, 344; 3 Waterman’s Archbold, 609, 610, 611.
    In the present ease the parties played for recreation and amusement, nothing more. It was a mere pastime, and there was no betting at all.
    
      But' a single witness was examined, and he testified expressly “ that he never bet any money or other valuable thing at said table, and that he never saw the defendant or any one else bet; that the printed rules of the table were posted up in the billiard-saloon, and that by said rules betting was expressly prohibited; that said rules did not require any fee to be paid by any person or persons playing at a game or games- of billiards at said table ; and that among said printed rules, so posted up, there was none about paying or being liable for the table fees at all; and that he never knew said defendant to pay anything for table fees.” Yet, in the face of this evidence, the couife charged that “ the rule of the game was that the loser of the game should pay the billiard fee,” and that if the defendant played “ under and knowing the rule,” it was gaming.
    The table is licensed by law, and if the proprietor has a right to charge the fees, and that is the rule of the game, as certified to the jury by the court below, then the beaten party ought to be bound in law as well as good morals to pay them.
    It is made lawful by the statute to “ set up and use a billiard-table for play,” and to say that the proprietor shall not charge for the use of the table or saloon would be to commit a fraud upon him by selling the right, and then declaring the exercise and enjoym'ent of it illegal. In what does the “ use” of the table consist?
    2. Under our statutes, we can safely go a step further than is necessary under the facts of the present case, and say, that if the defendant did, as alleged, bet money, even then it was not an indictable offence.
    By the territorial laws it was enacted, that “ if any person shall be guilty of keeping a billiard-table for play, not being licensed agreeably to law, he shall be fined in a sum of not less than five hundred dollars, fec.^nd stand in the pillory.” Territorial Laws, p. 241, Act of 1812.
    Throughout the act “play” and “ bet” are used as synonymous. Ib. 285, 236.-
    Every person wishing to set up and use a billiard table for play, may do so by obtaining a license. Ib. 241; and Act of 1822, Hutch, and How. 678, § 61.
    If any person shall play in an ordinary, &c., or bet on the sides - or hands of those who do game, &c. And so throughout the Act of 1822. Hutch. & How. 678, § 62, p. 681, § 70, p. 682, § 79.
    By .the Act of 1839, it was declared to be a misdemeanor for any person to play at any game, at cards, dice, billiards, &c., for money or other valuable thing. Hutch. 951.
    ■ Then comes the Revenue Act of 1844, which authorizes any person “ wishing to set up and use a billiard-table for play, to obtain a license, &c., upon paying a certain sum of money,” &c. Hutch. Code, 183.
    And by an act approved 27th of February, 1854, it is enacted : “ That any person or persons who shall keep or cause to be kept a billiard-table or tables in the town of Columbus, shall be exempt from all State liabilities for the same, and the mayor and aldermen are authorized to levy a tax,” &c.
    Such being the statute law, the right to bet follows as a necessary consequence.
    The Supreme Court of Alabama say, under their revenue laws : “ The Act of 1848, to provide for the assessment and collection of taxes, expressly authorizes a license to be granted, upon the payment of a certain sum, to keep a billiard-table. It is clear that such table, whatever may have been its character previous to the act last cited, can now be exhibited under a license without incurring a penalty; and this being so, one who bets at such table is not punishable under the statute.” The State v. Allaire, 14 Alabama Rep. 436, 437 ; The State v. Moseley, 14 lb. 393; Barker v. The State, 12 Texas Rep. 273, 278 ; Estes v. The State, 10 lb. 300, 301, 308 ; Grow v. The State, 6 lb. 336 ; The State v. Hawkins, 15 Arkansas Rep. 259, 261; Rodgers v. The State, 26 Alabama Rep. 77.
    And the Supreme Court of Alabama say: “ Any other construction than that which we have placed upon the statute would render it unmeaning and absurd.” 14 Alabama, 394.
    The Act of 1839, under which the indictment was framed, allowed betting to any amount on a horse-race or shooting-match. 'The legislature did not consider betting “ odious” per se. And for a pecuniary consideration, they now allow billiard-tables to be “set' ■up and used” for play.
    The court below, therefore, erred in refusing the following ■ charge: “ That the act of the legislature expressly authorizes a license to be granted, upon the payment therefor of money, to keep a billiard-table for play; and this being so, one who bets at such table is not punishable by indictment for such betting.”
    3. There was no proof that the defendant played “for money,” a “bank bill,” or “ certificate of deposit,” as charged.
    If playing under the rule of the game, that the party beaten thereby became indebted to the owner of the table for the table fee, still that was not playing for money or the like, as set forth. Williams v. The State, 12 S. & M. 58; 2 Dana, 298 ; 7 Yerger, 526; 5 lb. 160; Anthony v. The State, 4 Humph. 85; 8 Blackf. 403; Sale v. The State, 8 Texas, 171, 172; 4 Indiana, 560.
    Did the “ table fee consist of money, a bank note, or the certificate of deposit?” Was it gold and silver coin, in the technical sense of judicial proceedings ? But the parties did not play for any such things, but for amusement and to beat the game. They played at billiards. That was a lawful pastime; and even if the defendant paid the table fees, it was what the owner was entitled to demand and receive for the use of the table; and how could such payment amount to playing “ for money,” bank bills, or the like? If there was a wager or bet, who were 'the parties to it, who won, and when, and what? Can there be a playing “for money,” and neither side gain by the result of the game ?
    4. The court erred in the admission of illegal evidence.
    A single witness was examined, and he was permitted, under a single charge of playing for money, to state that he had “frequently” seen the defendant play at billiards, at said table, and that it was the custom of the witness to pay twenty-five cents a game to the proprietor, by the rub, when he was beaten, and that it was the custom of all others with whom he played, and this too, in the face of the “printed rules;” and the fact that the witness swore positively that he never had played for money or valuables, and that the defendant never had to his knowledge. “ In criminal cases, the grand jury have, by their bill, found but a single offence; and, the presumption is, unless it otherwise appear from the indictment, that the act to which the evidence relates, is the one to which the indictment refers; and if that presumption is correct, it would necessarily exclude evidence of any other.” JSlam v. The State, 26 Alabama, 48, 51, 52.
    5. The court erred in undertaking to decide the facts of the case.
    The rule of the game was a matter of fact; and what the rule was, was a question for the jury to decide. And the court, in’the decision of the rule, excluded the printed rules, and the positive evidence of the witness, and went upon its own knowledge of the “technics and appellatives.” The court even decided the amount of the fee, which “is” twenty-five cents; and then, instead of leaving it to the jury to say what was or was not “ playing for money or other valuable thing,” settled that question for them, and decided that paying the table fees was betting, “ or gaming as charged.”
    These were questions of fact. Armstrong v. The State, 4 Blackf. ■ R. 247, 248, 249; Montee v. The Commonwealth, 3 J. J. Marsh. 134; G-laseoele v. The State, 10 Miss. R. 509, 510.
    And the last charge given for the State, even contradicted the indictment itself. “ If the jury believe, from the evidence, that the defendant played at billiards, as charged, for the table feé, which is twenty-five cents, he is guilty.” There was no such charge in the indictment, but the allegation was that the defendant played for money, &c. The charge, also, dispenses with proof as to the commission of the offence within one year before the finding of the indictment, and that it was within the body of the county.
    6. The offence was committed within the corporate limits of the town of Columbus. Acts 1854, p. 438, § 8; Legoir v. The State, 8 Sm. & Mar. 699; Montgomery v. The State, Opinion Book “ Cr,” 4,
    
      T. J. Wharton, attorney-general, for the State.
    Plaintiff in error was indicted for gaming. The indictment alleges that he unlawfully did play at billiards for money, to wit, “ a certain bank bill, and certificate of deposit on the Columbus Life Insurance Company, each of the value of one dollar,” &c.
    On the trial in the court below, it was proved that no money was bet on the game, but that plaintiff in error had played at billiards, and having lost the game, he paid the keeper of the billiard-room the customary and established fee for the use of the table. It was proved to have been a regularly licensed billiard-table. The court instructed the jury that if they believe, from the evidence, that the defendant played at billiards, as charged, for the table fee, which is twenty-five cents, he is guilty.
    There were various other instructions ashed by the State, which were given, but the foregoing comprises the main points on which the case turned. All the instructions asked by the plaintiff in error were refused. It is unnecessary to consider any, save the one above, asked on either side. The point is very broadly presented by the record, and may be stated as follows: Where the keeping of a billiard-table is regularly authorized by law, and the owner establishes the rule that every party losing a game shall pay twenty-five cents for the use of the table, can an indictment for gaming be maintained against a person who plays a game, loses it, and pays the fee for the use of the table ? The question is one which has never arisen in the courts of Mississippi, nor am I aware that it has been presented in any other State, where billiard-tables are licensed.
    The counsel for the plaintiff in error has filed a most elaborate and learned brief in opposition to the legal views embodied in the instructions for the State.
    Disguise it as the most specious and ingenious argumentation may do, and at last it comes back to this: Was there not a bet on the result of the game, as much so as if the money had been put up ? Is it not a wager between the players, of the amount the loser will have to pay the billiard-table keeper ? Can the fact that the proprietor of the table exacts as a fee, for the use of the table, twenty-five cents for every game played, from the loser, make it less a “game of hazard,” than if the players, on going in to play, had bet twenty-five cents in the result of the game ? It is true, in one sense, that the party who wins the game, wins no money, — for that goes to the keeper of the table; but if he does not make twenty-five cents, for himself, he saves twenty-five cents for himself. Is he not betting twenty-five cents, though it be for the keeper, if he wins it ? I only desire to know if it is not true that twenty-five cents is pending between the parties, on every game they play ?• As to the appropriation which may be made of it, that is another matter. How can that change the legal principle, any more than if I played a game of cards for another, — betting his money for him on the result, — not having the interest of a farthing in the game myself; I would be subject to indictment, — he not.
   Fisher, J.,

delivered the opinion of the court.

This was an indictment in the Circuit Court of Lowndes county, charging the defendant with playing for money or other valuable thing at a game of billiards.

The proof is that the playing was at a regularly licensed table for that purpose, and the defendant being the loser of the game, it was presumed that he paid the regular fee chargeable by the owner of the table. Supposing both facts to be true, still no offence was established against, the law.

To constitute gaming, one or the other of the parties must expect to profit by the game. Here neither could derive such profit, because neither was entitled to the fee paid to the owner of the table. Admitting that it is the rule of the game that the loser shall pay the fee, the owner has a perfect right to make his contract in this way, the law not prohibiting this mode of contracting.

Judgment reversed, and venire de novo awarded.  