In re Allen , 59 Cal. 2d 5 ( 1962 )

GIBSON, C. J.

A petition for a writ of habeas corpus was filed in this court on behalf of Betty Loeb Allen, who was arrested and charged with a violation of section 22 of article 2 of Los Angeles County Gambling Ordinance No. 461. The section provides: “A person shall not knowingly permit any game prohibited by this ordinance to be played, conducted, or dealt, in any house or other premises, owned by, rented by, or in the lawful possession of such person.” Section 21 of article 2 provides, in part: “A person shall not deal, play, carry on, open, cause to be opened, or conduct any game of chance played with cards, dice, or other device for money, checks, credits, or other thing of value.”

The complaint in the criminal action alleged that defendant “did willfully and unlawfully and knowingly permit a game of chance, to wit: Bridge, played with cards, dice and other device, for money, checks, credits, and other things of value, to be played, ...” There is no contention that bridge is played with dice or any device other than cards.

Defendant is entitled to be discharged if the allegations of the complaint affirmatively show that the conduct with which she is charged does not constitute a public offense (see In re Jingles, 27 Cal.2d 496, 499 [165 P.2d 12] ; In re Culver, 187 Cal. 437, 439 [202 P. 661] ; Ex parte Greenall, 153 Cal. 767, 770 [96 P. 804] ; Ex parte Williams, 121 Cal. 328, 330 [53 P. 706]), and it is contended that bridge is a game of skill and not of chance and that therefore the complaint does not charge an offense.

The term “game of chance” has an accepted meaning established by numerous adjudications. Although different language is used in some of the cases in defining the term, the definitions are substantially the same. It is the character of the game rather than a particular player’s skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game. (People v. Settles, 29 Cal.App.2d Supp. 781, 787 [78 P.2d 274] ; Boies v. Bartell, 82 Ariz. 217 [310 P.2d 834, 837] ; State v. Hahn, 105 Mont. 270 [72 P.2d 459, 461] ; Baedaro v. Caldwell, 156 Neb. 489 [56 N.W.2d 706, 709] ; State v. Stroupe, 238 N.C. 34 [76 S.E.2d 313, 316-317]; D'Orio v. Startup Candy Co., 71 Utah 410 [266 P. 1037, 1038-1039, 60 A.L.R. 338]; see Longstreth v. Cook, 215 Ark. 72 [220 S.W.2d 433, 437] ; State v. Wiley, 232 Iowa 443 [3 N.W.2d 620, 624] ; Adams v. Antonio (Tex.Civ.App.) 88 S.W.2d 503, 505; cf. Brown v. Board of Police Comrs., 58 Cal.App.2d 473, 479 [136 P.2d 617].)

The rules of the game of bridge, which have been established on an international basis, are set forth in encyclopedias and other texts, and we are satisfied from the rules and from the many publications on the subject that the game is predominantly one of skill. The details of the rules need not be repeated here; it is obvious that, although there is of course an element of chance resulting from the deal of the cards, there is a continually recurring necessity in the bidding and play of the hand to make decisions which, considered together, will ordinarily be determinative of the outcome of the game. It is pointed out in 6 Encylopaedia Britanniea (1962) p. 349, that bridge “embraces a technique which in complexity approaches that of chess; and, in addition, a scope for deductive analysis, psychology, alertness and mental ascendancy over one’s opponents. Thus it is an art, which can hardly be taught or even described.”

Other texts discussing bridge are in accord with the view that it is predominantly a game of skill. (See, e.g., Culbertson, Contract Bridge Complete (1954) p. 28; Goren, The Elements of Bridge (1960) foreword; Karpin, Psychological Strategy in Contract Bridge (1960) p. vii.) At least one case has so held. (Stubbs v. Dick (Ohio Com. Pleas) 89 N.E.2d 480, 482 et seq.) It has been said that the literature on bridge is unapproached in quantity by that on any other game and that more than 5,000 volumes were written on the subject between 1927 and midcentury. (See 6 Encyclopaedia Britanniea (1962) p. 349; Goren’s Hoyle, Encyclopedia of Games (1961) p. 115.) There are periodicals dealing with the game (see, e.g., Bridge World; Bridge Magazine) and daily newspaper columns discussing the best methods of bidding and playing particular hands. The existence of such a large amount of literature designed to increase the player’s skill is a persuasive indication that bridge is not predominantly a game of chance.

The complaint shows on its face that an offense is not charged, and therefore we do not reach the further contention made by defendant that the state has occupied the field of the criminal aspects of gambling to the exclusion of local regulation.

The writ is granted, and defendant is discharged from custody.

Traynor, J., Peters, J., Tobriner, J., and White, J.,^* concurred.

* Retired Justice of the Supreme Court sitting pro tempore under assignment by the Chairman of the Judicial Council.