GAMING. A contract between two or more persons by which they agree to play by certain rules at cards, dice, or other con trivance, and that one shall be the loser and the other the winner. Gaming is not an offence eo nom/ine; Harkey v. State (Tex.) 25 S. W. 423.
When considered In itself, and without regard to the end proposed by the players, there is nothing in it contrary to natural equity, and the contract will be considered as a reciprocal gift, which the parties make of the thing played for, under certain con ditions.
There are some games which depend alto gether upon skill, others which depend upon chance, and others which are of a mixed na ture. Billiards is an example of the first; lottery, of the second; and backgammon, of the last. See State v. Gupton, 30 N. C. 271. The decisions as to what constitutes gaming have not been uniform; but under the stat utes making it a penal offence, it may be defined as a staking on chance where chance is the controlling factor ; In re Lee Tong, 18 Fed. 253; that betting on a horse race is so, see Ellis v. Beale, 18 Me. 337, 36 Am. Dec. 726 ; Tatman v. Strader, 23 III. 439 ; Cheesum v. State, 8 Blackf. (Ind.) 332, 44 Am. Dec. 771; Wade v. Deming, 9 Ind. 35 ; Shrophire v. Glascock, 4 Mo. 536, 31 Am. Dec. 189; Garrison v. McGregor, 51 Ill. 473; contra, State v. Rorie, 23 Ark. 726; State v. Hayden, 31 Mo. 35 ; Com. v. Shelton, 8 Gratt. (Va.) 592 ; that a billiard table is a gaming table ; People v. Harrison, 28 How. Pr. (N. Y.) 247 ; State v. Bishel, 39 Ia. 42; contra, State v. Hope, 15 Ind. 474; Blewett v. State, 34 Miss. 606. Baseball is a game of skill with in the• criminal offence of betting on such a game; Mace v. State, 58 Ark. 79, 22 S. W. 1108. The following are additional ex amples of illegal gaming : cock fighting and betting thereon; Com. v. Tilton, 8 Mete. (Mass.) 232; Bagley v. State, 1 Humph. (Tenn.) 486; the game of "equali ty ;" U. S. v. Speeden, 1 Cra. C. C. 535, Fed. Cas. No. 16,366; a "gift enterprise;" Bell v. State, 5 Sneed (Tenn.) 507; Eubanks v. State, 3 Heisk. (Tenn.) 488; "keno ;" Miller v. State, 48 Ala. 122 ; City of New Orleans v. Miller, 7 La. Ann. 651; "loto ;" Lowry v.
State, 1 Mo. 722 ; betting on "pool ;" State v. Jackson, 39 Mo. 420; State v. Sanders, 86 Ark. 353, 111 S. W. 454, 19 L. It. A. (N. S.) 913; a ten-pin alley; Spaight v. State, 29 Ala. 32; contra, State v. King, 113 N. C. 631, 18 S. E. 169 ; see State v. Hall, 32 N. J. L. 158; stock-clock ; State v. Grimes, 49 Minn. 443, 52 N. W. 42; crap ; Bell v. State, 32 Tex. Cr. R. 187, 22 S. ,W. 687 ; playing pool, billi ards or ten pins; Hopkins v. State, 122 Ga. 583;50 S. E. 351, 69 L. R. A. 117, 2 Ann. Cas. Murphy v. Rogers, 151 Mass. 118, 24 N. E. 35 ; throwing dice or playing any game of hazard, to determine who shall pay for liquor or other article bought ; Com. v. Tay lor, 14 Gray (Mass.) 26; Corn. v. Gourdier, 14 Gray (Mass.) 390 ; or throwing dice for money; Farmer v. State, 91 Ga. 152; 16 S. E. 937; one who keeps tables on which "pok er" is played, but is not directly interested in the game, is not guilty of gaming under the Virginia code; Nuckolls v. Corn., 32 (Va.) 884; merely betting at "faro' is not carrying on the game ; Ex parte Ah Yeni, 53 Cal. 246; the law against any game cannot be evaded by changing the name of the game; Smith v, State, 17 Tex. 191 ; ath letic contests, when not conducted brutally, even when played for a stake, have been held lawful ; 2 Whar. Cr. L. § 1465; betting upon a foot race is gaming within the meaning of a statute; Jones v. Cavanaugh, 149 Mass. 124, 21 N. E. 306; pin pool has been held not by be a gambling game; State v. Quaid, 43 La. Ann. 1076, 10 South. 183, 26 Am. St. Rep. 207.
The mere fact that the loser of the game paid the charges thereon is held to constitute gaming ; Hamilton v. State, 75 Ind. 586 State v. Miller, 53 Ia. 154, 4. N. W. 900 ; State v. Leighton, 23 N. H. 167; Ward v. State, 17 Ohio St..32; cantra, State v. Quaid, 43 La. Ann. 1076, 10 South. 183, 26 Am. St. Rep. 207; Breninger v. Treasurer of Town of-Bel videre, 44 N. J. L. 350; People v. Forbes, 52 Hun 30, 4 N. Y. Supp. 757. See State v. Sanders, 86 Ark. 353, S. W. 454, 19 L. R. A. (N. S.) 913.