State v. . Deboy , 117 N.C. 702 ( 1895 )

The indictment was as follows:

"The jurors for the State, upon their oath, present: That Nick DeBoy, late of the county of Wake, on 25 March, 1895, with force and arms, at and in the county aforesaid, unlawfully and wilfully did play at a game of chance, namely, a raffle, at which money, property and other things of value were bet, contrary to the form of (703) the statute in such case made and provided, and against the peace and dignity of the State. And the jurors for the State, upon their oath, do further present: That Nick DeBoy, late of the county of Wake, on 25 March, 1895, with force and arms, at and in the county aforesaid, unlawfully and wilfully did bet at a game of chance, namely a raffle, at which game of chance money, property and other things of value were bet, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

The defendant moved to quash the bill, and the discharge of the defendant thereunder, for that it did not charge any offense. The court overruled the motion, and defendant excepted.

Thomas Pence, a witness introduced by the State, testified that some time in the fall of 1894, the defendant, who kept a store near the market house, in the city of Raleigh, had turkeys on hand for sale; that on one occasion he offered a turkey at a fixed price, to be raffled for; that he, the witness, and a number of others bought the privilege of throwing dice for the turkey, giving ten cents for the privilege of throwing one time; that the privileges were ten cents apiece, all the chances being taken; and that of those who took chances the one that threw the highest number, as counted upon the dice, took the turkey; that he did not know whether defendant bought a chance, but that he saw him throw off the chances for some who had bought them.

James Jones, another witness for the State, testified to the same effect.

The defendant demurred to the evidence, and asked the court to instruct the jury that upon the evidence he was entitled to a (704) verdict of not guilty. The court refused the instructions, and the defendant excepted. Verdict of guilty was rendered, and the defendant moved in arrest of judgment upon the same ground as that of the motion to quash. The court overruled the motion, and the defendant excepted and appealed. If several parties each put up a piece of money and then decide by throwing dice who shall have the aggregate sum, or "pool," this is unquestionably a game of chance. The sum put up by each is his bet and the pool gamed for is the stake.

This is exactly what the parties did in this case. The only variation is that when the pool was raised it was exchanged for a turkey, which stood in lieu of and became the stake, and, further, they chose to style the transaction a raffle, and it is contended that a raffle is a kind of lottery and hence not a game of chance. But lotteries are a species of gambling, and because thereof the Supreme Court of the United States has held that they were immoral and their circulars and tickets could be excluded from the mails.

Technically, a person cannot be said to play at a lottery. The tickets are drawn out of a wheel. But in this case the parties played dice for the possession of the turkey, and success depended "on the hazard of the die. "The defendant is liable both because he threw dice as agent for one of the players and because he got up the game. In misdemeanors all aiders, abettors and accessories are principals.

The transaction was simply gaming with dice, with ten-cent bets and for a turkey as a "pool." The case of S. v. Bryant, 74 N.C. 207, merely holds that the transaction there described was a (705) lottery, and the keeper thereof and the purchasers of tickets therein were not indictable for playing at a game of chance, under chapter 32, section 72, Battle's Revisal (now The Code, sec. 1045), though the seller would be liable under The Code, secs. 1047, 1048. Another "gift enterprise" was held a lottery and the holder of it liable to indictment under The Code, sec. 1047, in S. v. Lumsden, 89 N.C. 572, and such lottery was held to be a "game of hazard."There is no adjudication as to the liability of the purchasers of the tickets.

Whatever defects there were in the law of gambling were intended to be cured by Acts 1891, ch. 29, which makes it "unlawful for any person to play at any game of chance at which money, property or other thing of value is bet, whether the same be at stake or not, and those who play and those who bet thereon shall be guilty of a misdemeanor." This covers the present case and all other forms of raffling.

It must be noted that this statute and this decision have no application to the long prevailing custom of "shooting for beef," shooting at turkeys and other similar trials of skill. It is true there each participant pays for the privilege or so-called "chance" of shooting for the prize, but there is no chance in the sense of the acts against gambling. These are trials of skill, which the law has never discouraged, and not games of chance in any sense. Nor does the statute prohibit the social diversions in which the hostess offers prizes for the most successful player at cards or other games. In such cases, though they are games of chance, the players bet nothing. They lose nothing if unsuccessful, and pay nothing for the chance of winning.

No error.

Cited: S. v. Martin, 141 N.C. 840; S. v. Lumber Co., 153 N.C. 613.

(706)