
    KELLEY, Respondent, v. DIRKS, Appellant.
    (167 N. W. 724.)
    (File No. 4292.
    Opinion filed May 18, 1918.)
    1. Gaming — Non-criminal Wager of Money, Right to Withdraw, Before Event Happens.
    In absence of statute making wagering of money criminal, such wager may be withdrawn at any time before happening of event on which it is made.
    3. Same — Election Bet, Subject to Withdrawal if Wagerer Died Before Election, Whether Withdrawable on Wagerer’s Death Before Election — Criminal Statute Construed)
    Under .Pen. Code, Sec. 59, making it a misdemeanor for any person to make, offer, or accept a bet on result of an election, the making of the bet constitutes the crime, the offense being completed as soon as the wager is made, the transaction is void ab initio, and in law is not a contract; and withdrawal of the money before happening of event on which the wager was made, does not alter the status of the money or the rights of the parties. So held, where wager was on condition that if wagerer died before the election in question, the money should be turned over to his widow.
    
      3. Same — Election Ret Conditioned on Payment of Money to Wagerer’s Widow Should he Die Before Election — Criminal Wager — Right of Administrator to Recover From Widow— Statute.
    A bet on an election was made on condition that if wagerer died before the election, stakeholder should turn money oyer to his widow; the stakeholder having, on wagerer’s death before election, paid it over to widow. Held, that, since the bet was criminal, under Pen. Code, Sec. 59, and the wager was a completed offense when made, court should refuse to entertain suit by decedent’s administrator against the widow, for the money as belonging to the estate.
    Gates, J., dissenting.
    Appeal fiiolm Circuit Court, Brule ^County1. Hlon. Frank B. Smith, Juidge.
    Action by Guy Kelley, as administrator oif the estate of Peter iB. Dlirks, 'deceased, against 'Suzanne C. Dirks, to recover mmey, ‘wagered upon am election 'by (her husband, and' turned aver ta her by stakeholder. From 'an order overruling demurrer toi the complaint, 'defendant: appeals.
    Reversed.
    
      B. B. Wagner, and G. J. Danforth, for Appellant.
    
      B. R. Slifer, for Respondent.
    
      (2) To point two of the opinion, Appellant cited; Matthews v. Loipus, (Calif.) 140 Pac. 306; Pomeroy’s Equity Jurisprudence, Vol. 2, Section 938; Elliott on Contracts, Vol. 1009.
    Respondent cited1: 12 Ruling Case Law, p,. 762; Bernhard v. Taylbir, 31 Pac. 968; Stover v. Flower, 94 N. W. 1100; Mueller v. Stoscker Cligar 'Co., 131 N. W. 983.
   POLLEY, J.

The plaintiff in • this1 action is the adminis - trator of the estate of a deceased1 person, and. the defendant ais tibe surviving wiidbw: oif such decedent. Shortly prior to the death of de'cadiemt he made a bet or wager of a sum of money on the result oif the general election, ito be held in November, 1916. The money so wagered1 was: placed in the hands of a stakeholder to abide tire result oif said election, but with tire understanding that, ’¿If the decedent should die prior to the date of siudb election, then such sum of money should be turned1 over to decedent’s wife. The .death of decedent took place before said' election was 'held,, and the stakeholder turned said money over to tire defendant as decedent’s widow. Plaintiff, assuming that said money belonged to the decedent at the time of his death, claimed1 that it befcwigeri! to, deseenidient’s, estate after his death, and1 made demand therefor upon defendant. Upon her refusal to surrender said mlooey, .plaintiff instituted, this action flor Itire recovery thereof. 'Defendant demurred to plaintiff’© complaint, and, from an order overruling salid demurrer, defendant appeals.

In the absence of a .statute making the wagering of money a criminal offense, there ,is no dioulbt that such wager may 'be withdrawn by the party making it at any time before the happening Oif the event upon which the wager is made. Wasserman v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209. Biut in this state the wagering of money on the result of an election is a criminal offense. Section 59, Penal Code, provides as follows:

“Every person who, makes, offers, or accepts any bet or wager upon the result oif any election, * * * is guilty of a misdemeanor.”

Under the provisions of this section, the offense is completed as soon as the wager is made. This brings the 'case within the rule followed in Matthews v. Lopus, 24 Cal. App. 63, 140 Pac. 306. California lias a statute similar in effect to section 59 off our Penal Code, and, in considering said statute, that court said!:

“It will thus be observed1 that, under our law, as it stood at the time of the traiisaatioin giving rise to this action and as it now stands, the act of the (plaintiff in making the w'ager upon the result of the 'contest off skill,’ ¡in a wrestling match, between himself and said McLeod was itself a crime, and' the money sought to be recovered! here constituted lone of 'the essential means whereby tine crime was committed. The consequence is. that the transaction was void from its very inception. Indeed, the .transaction in law was not a contract. It was a crime fully completed1 and Consummated' upon the execution of the act of making the -wager, and it, of course, could not be the subject off disaffirmance or withdrawal by the parties to the wager in the sense that thus the law could take cognizance of 'the transaction amid restore the parties to statu quo. * * * In tine case here, however, while the transaction as to which the wager was made had not been completed' and .the disaffirmance of the wager may, (therefore, be said to have taken place before the event upon which it was staked ooourred', still, as bias been shown, the mere act of making the wager was, under the law, itself a cdm.pleted crime, and in such case, therefore, a party to the betting transaction cannot ¡claim to be in any different or better position, in the eyes of the law, than if, in the absence ¡of' any penal statute against wagering upon such events as the one concerned here, he should, after such event had' taken place -and been decided against him, seek the aid of the counts1 in an attempt to recover the money so wagered and lost.”

As the wagering of the money constituted a complete criminal offense under the statute, the count would not have entertained an action by the ¡decedent for a recovery of such money, even though he had withdrawn from, 'the wager before the happening of the event on which the wager was made And, if the decedent could not have maintainedsuch action 'during his', lifetime, neither can his administrator after his death, and the demurrer should have been sustained.

The order appealed from is reversed.

GATES, J.

(dissenting). If fee placing of money in fee hands Of a stakeholder wife a 'Condition constitutes' a Wager, then I have mo criticism to make of the opinion. Suppose at fee time of .staking fee mloiney it had1 been agreed' feat either party might 'withdraw' bis stake at any time prior to ten days' before election. Gould it have been properly claimed! oto any date ¡prior to fee beginning of fee ¡ten-day period that there was a wager? Upon such a state of facts, could cither 'party halve bear convicted1 under Section 59, Pen. Code, or the stakeholder under section 27, Pen. Code, if the mioney had been withdrawn prior to fee beginning of fee tera-day period? ft- ©eeras1 cl'e'ar to me feat he could' not. 'If not in that case, rwhy in this? I think ’fee trial icouirt ruled correctly.  