The defendant was indicted, with two others, for playing together, "at a certain public gaming place called a tenpin alley, a certain game of chance called tenpins, and betting money thereat," contrary to the statute. Upon not guilty pleaded the defendant was tried alone.
Evidence was given for the State that a tenpin alley (272) was kept up at a public place, where spirituous liquors were retailed, and that the defendant, with others charged, played the game of tenpins for money. Evidence was further given that the game is thus played: Tenpins or blocks of wood are set up at one end of a platform sixty feet long and four feet wide, and the players stand at the other end and thence bowl a wooden ball at the pins, and he who knocks down the greater number of the pins is the winner.
For the defendant it was contended that the case proved was not within any statute. But this Honor was of opinion that, under the broad words of the act of Assembly, the facts constituted an indictable offense, and the jury convicted the defendant, and after sentence he appealed. The Legislature has wisely set its face against the idle and vicious practice of gaming, and to that end has passed various laws, calculated more or less to suppress it. But *Page 200 no one of them, we believe, reaches the present case. Besides avoiding all securities for money won at play, certain kinds of gaming are made criminal. Playing at cards in a public house, and betting thereon, and suffering such gaming at cards by the keeper of the house, or supplying the players with refreshments, are forbidden and distinctly made indictable. Against public gaming tables, also, there are several provisions. E. O., A. B., and A. B. C., faro banks, pass die tables, or any other table or bank of the same or like kind under any denomination are forbidden to be used in this State, and heavy penalties given against any one who keeps or uses them or who suffers games to be played at them in his house; and authority is given to certain officers to destroy the tables, and seize all money (273) staked or exhibited. Rev. St., ch. 34, sec. 64, etc. None of those enactments sustain this indictment. Except as to gaming at cards, forfeitures and pecuniary penalties alone are enacted, and not indictment. To supply that omission the Legislature passed the act of 1835, which is incorporated into the present statute. Rev. St., ch. 34, sec. 68. It is the only provision on which reliance is placed in support of this indictment, and is, no doubt, the one on which the indictment was drawn. It enacts that, in addition to the penalties before prescribed, any person who shall construct, erect, keep up or use any public gaming table or place at which games of chance shall be played, by whatever name called, and every person who shall play at any of the forbidden gaming tables any game of chance and bet thereon, shall be guilty of a misdemeanor, and upon indictment and conviction shall be punished as prescribed by the act. The question, then, is the narrow one, whether "tenpins," as it is described in the exception, is a game of chance or not. The phrase, "game of chance," is not one long known in the law and having therein a settled signification, but was introduced into our statute-book by the act of 1835. As it had no technical meaning, as a legal expression, it must have been used by the Legislature in the sense in which persons conversant in games, or the world at large, give to it in classing the different kinds of games. Therefore it is apparent that those games are specified in contradistinction to other games which are not games of chance. In other words, those terms must be understood in their plain, popular sense, as descriptive of a certain kind of games of chance in contradistinction to a certain other kind, commonly known as games of skill. Though our knowledge on such subjects is very limited, yet we believe that, in the popular mind, the universal acceptation of "a game of chance" is such a game as is determined entirely or in part by lot or *Page 201 mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted (274) by chance. As intelligible examples, the games with dice, which are determined by throwing only, and those in which the throw of the dice regulates the play, or the hand at cards depends upon a dealing with the face down, exhibit the two classes of games of chance. A game of skill, on the other hand, is one in which nothing is left to chance, but superior knowledge and attention, or superior strength, agility and practice gain the victory. Of this kind of games chess, draughts or chequers, billiards, fives, bowls, and quoits may be cited as examples. It is true that in these latter instances superiority of skill is not always successful — the race is not necessarily to the swift. Sometimes an oversight, to which the most skillful is subject, gives an adversary the advantage; or an unexpected puff of wind, or an unseen gravel in the way, may turn aside a quoit or a ball and make it come short of the aim. But if those incidents were sufficient to make the games in which they may occur games of chance, there would be none other but games of that character. But that is not the meaning of the statute, for, as before remarked, by the very use of those terms the existence of other kinds of games, not of chance, is recognized. The incidents mentioned, whereby the more skillful may yet be the loser, are not inherent in the nature of the games. Inattention is the party's fault and not his luck, and the other obstacles, though not perceived nor anticipated, are occurrences in the course of nature, and not chances. They are, indeed, sometimes inaccurately called so, as one hears "chances of war" used to excuse losses by means not foreseen, but which might, and, though out of the usual course of things, ought to have been foreseen and provided against. For the art of war is surely a science, and the results of certain powers, movements and combinations may be almost mathematically calculated. In the same manner, comparing small things with great, these are games of skill — purely such, although the better player may, in particular instances, fail to win, from such causes (275) as those mentioned, the want of attention or energy, and not the blindness of chance. In that sense tenpins, as understood by us from the description in the case, is not a game of chance, but of skill. Nothing is referred to chance; but, as in billiards, a just estimate of distances and angles, steadiness of hand and a due application of strength constitute, under ordinary circumstances, the judicious and successful player. We take this game to be one species of the game known in England, and spoken of in her statutes, under the general term of bowls; *Page 202 and if it be, there is legal authority for holding it not to be a game of chance. The phrase is found in a statute of 5 Geo. IV., which enacts that every person playing or betting, in any open or public place, at or with any table or instrument of gaming, "at any game or pretended game of chance," may be punished as a vagrant. Mr. Chitty states that playing at bowls is not within the act. 3 Chit. Cr. L., 673. So in Sigel v. Jebb, 3 Stark., ch. 1, Chief Justice Abbott held that all games for money, "whether of skill or of chance," were unlawful within the meaning of St. 9 Anne, and remarked particularly that playing at bowls had been held to be within that statute, "and yet that was not a game of chance." In like manner bowls and tenpins are certainly within our act avoiding gaming contracts. But, for the reasons assigned, we do not think that those and other games of the like kind are games of chance within the other act of 1835, so as to render the players indictable.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: S. v. Taylor, 111 N.C. 682; S. v. King, 113 N.C. 632.
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