Appellant contends that the information fails to state facts sufficient to charge a public offense, and the court erred in overruling appellant’s demurrer based on that ground.
Omitting the formal allegations, the charging portion of the information is as follows:
*409“The said S. "W. McCall, ... on or about the 9th day of November, 1915, and before the filing of this information, at and in the county of Maricopa, state of Arizona, did then and there willfully and unlawfully carry on, open, conduct and cause to be opened a certain banking and percentage game commonly known as French pool or pari mutuel, which said game was then and there played with a certain device, to wit, a betting machine commonly known and called by the name of French pool or pari mutuel machine, which game was then and there played for money, checks, credits and other representatives of value. . . . Contrary to the form,” etc.
The information is drawn under section 321 of the Penal Code of Arizona of 1913, which is as follows:
“Every person who shall deal, carry on, or open, or cause to be opened, or who shall conduct, either as owner, proprietor, or employee, whether for hire or not any banking or percentage game whatsoever played with cards, dice or any other device, whether the same be played for money, checks, credits, or any other representatives of value, . . . shall be guilty,” etc.
The information substantially charges the offense of conducting a banking or percentage game played with a device commonly called a “French pool,” or “pari mutuel,” machine.
The information, though inartificially drawn, is probably sufficient, if sustained by the evidence. The machine is described by the name by which it is commonly known. The manner of playing the game by the use of the machine mentioned is not apparent from the information. The court, as a legal proposition, may not take notice of the game referred to and of the method of using such machine in playing the game, in the absence of allegations setting forth such facts, and therefore the court cannot say, as a matter of law, that a banking or percentage game condemned by the statute could not be played with a pari mutuel machine such as the accused is charged by the information with opening. After conviction I will consider the information sufficient to charge a public offense under the statute and put the accused upon his defense. I do not wish, however, to be understood as approving the form of the information for a precedent for general use.
*410The appellant complains that the court erred in denying his motion to dismiss the charge upon the grounds that the evidence was insufficient to warrant a conviction.
The cause was tried by the court without a jury, upon an agreed statement of facts; consequently, the evidence is without conflict, and if substantial evidence in support of the material allegations of the information appears in the record, the judgment of conviction must be sustained on this appeal. With the weight of the evidence this court has nothing to do. That question is for the lower court.
The facts shown by the record are: That on the ninth day of November, 1915, before a horse-race commenced on the race-track at the fair grounds in Maricopa county, Arizona, the accused produced a device commonly called a “pari mutuel” machine. The accused furnished tickets to bettors who desired to lay bets on the proposed horse-race about to start. The bettor, taking a ticket, named the horse selected by him to win the race, and delivered $2 to the accused at the time of receiving the ticket. The tickets furnished the bettor, by the accused, bore the name of the horse selected by the bettor to win the race. The accused caused such ticket, furnished by him, to be registered on the machine and closed the machine when the race started, and held all the money given to him in exchange for all the tickets until the result of the race was declared. The machine registering the tickets furnished the bettors recorded the total number of tickets furnished, and the number of tickets furnished naming each horse in the race to win. When the result of the race was known, the accused deducted ten per cent from the total sum of money, so in his hands, as his commission, and divided the balance of such sum among the holders of the tickets bearing the name of the horse declared the winner of the race. The accused “did not wager any money upon the result of the race and . . . the division of the money is not determined by the pari mutuel machines, or by the owners or operators thereof, but by the result of the horse-race, but that the machine merely indicates the number of tickets sold upon the different horses in the race and the operators, and owners of the machine merely divide the money paid in for tickets less their commission.”
*411The trial court held in effect that such facts constitute the carrying on of a banking or percentage game played with a device other than with cards or dice for money, checks or other representatives of value, by the accused, and he was therefore guilty of a violation of section 321 of the Penal Code of Arizona of 1913, and adjudged that he be punished therefor, accordingly.
The question is whether the accused by the use made of the-machine, as described in the statement of facts, violated the criminal law and thereby incurred the penalty prescribed by section 321 of the Penal Code. In other words, is the accused guilty of conducting a gambling game played with any device other than with cards or dice, by the operation of his pari mutuel machine, in registering tickets sold by him to the bettors on a horse-race ?
Certainly holding the stake is not playing a game. Dividing the stake and paying it out to the several winners is not playing a game. Holding a commission for the services rendered in the transaction is not playing a game. Neither can the furnishing of the tickets be considered as playing the game. Under the evidence the game played was the horse-race. The bets were laid on the result of that contest. If a horse-race may be considered a game and a gambling device, as some courts have affirmed and others denied, yet the accused is not charged with playing a game with horses running on a prepared track as gambling devices. The specific charge is that he conducted a gambling game by the use of a pari mutuel machine as a device. Clearly, then, the horse-race, the tickets sold, the pooled funds in the accused’s hands, his commissions, and the division of such funds and his paying them out to the persons entitled, are not involved in this ■charge, because he is not charged with conducting a horse-race game in the first place; and, in the second place, those things which he did in the premises do not amount to conducting any game whatever.
If the charge has been maintained by the evidence, then, such evidence showing that the accused registered the tickets sold by him to the bettors, and kept a record of such tickets by means of the machine, is the only evidence supporting the charge that the accused conducted a gambling game by means of a device other than with cards or dice, to wit, a pari mutuel *412machine. To hold that such evidence is sufficient to support the charge of a public offense condemned by our statute would to my mind be wholly absurd. The accused is not charged with betting on the horse-race. The record is clear that he-wagered nothing upon the result of the race. Had he been charged with gambling on the horse-race, the evidence clears him of that charge, unless he by his acts became an accessory. In which event we may have been called upon to determine whether the law condemns as a crime betting, on horse-races but such question is not here presented, and until such question is properly before this court we may not declare an opinion thereon. I am of the opinion that the evidence fails to support the allegations of the information.
For these reasons I am of opinion that the judgment of conviction should be vacated, the cause remanded, with instructions to dismiss the cause and discharge the defendant.