I concur in the disposition of this case as directed by Justice CUNNING-HAM, but feel that I should give my reasons therefor, inasmuch as I do not approve of all that is said by my learned Associate.
I do not think the count of the information upon which the appellant was convicted states a public offense, and, if that be true, our opinion should be limited to a decision of that question. The statute, (section 321, Penal Code 1913) prohibits banking and percentage games of every kind played with cards or played with dice or played with any other device. The statute particularizes the instrumentalities, to wit, cards and dice, with which some of the games forbidden may be-played. Experience teaches that those who have a penchant or passion for gambling are very ingenious in inventing new devices and contrivances with which to gratify their appetite for gambling, and at the same time evade the letter, if not the spirit, of the law, and the lawmakers, familiar with this well-known fact, after mentioning banking and percentage games played with cards and dice, anticipating, likewise prohibited banking and percentage games “played with . . . any other device.” .The games prohibited, then, are those played with named devices, to wit, cards and dice, and those played with unnamed devices.
*413The information names the game played by appellant as French pool, or pari mutuel, and the device with which the game is said to be played is “a betting machine commonly known and called by the name of French pool or pari mutuel.” Neither the game nor the instrumentalities with which it is played is further described in the information. Within and of itself, and the human factor which is always present in gambling, the game is alleged to be played. If a banking or percentage game can really be played with a pari mutuel machine, then the information is sufficient. 20 Cyc. 880 and 881, defines a “game” as follows:
“A ‘game’ has been defined as any sport or amusement, public or private. It includes physical contests, whether of man or beast, when practiced for the purpose of deciding wagers, or for the purpose of diversion, as well as games of hazard or skill by means of instruments or devices.”
The game prohibited by the statute is not only a game, but it is a gambling game; it must “be played for money, checks, credits or other representative of value.” “Gaming” or “gambling” is defined to be:
“The risking of money or other property between two or more persons on a contest of chance of any kind where one must be the loser and the other the gainer. ’ ’
Where the game is played with cards, the cards themselves determine who is the winner and who the loser. This is likewise true with dice. An information charging that the gambling was with cards or dice or with any other well-known instrumentality, which in and of itself determines the contest, would doubtless state a public offense under the statute. As was said in the case of People v. Engeman, 129 App. Div. 462, 114 N. Y. Supp. 174; Id., 195 N. Y. 591, 89 N. E. 1107:
“This is the test: Whether the implement or device is used in determining who shall win or lose; whether it is an integral part of the actual gambling. A ‘gambling device’ is defined (20 Cyc. 871) as an ‘invention often used to determine the question as to who wins and who loses, that risk their money on a contest or chance of any kind; anything which is used as a means of playing for money or other thing of value, so that the result depends more largely on chance than skill. ’ ’
If the pari mutuel machine, with which it is alleged the appellant played a gambling game, decides or determines who *414shall win or who shall lose, it is one of the “devices” prohibited by the statute.
“Paris mutuels” is defined by the Standard Dictionary as. follows:
“A pool in betting, as in a horse-race, in which each bettor lays a fixed sum on the contestant that he selects, and those who choose the winners divide the entire stake, less the percentage of the person who furnishes the pool tickets; literally, mutual bets.”
This definition is descriptive of the game known as “parimutuel,” and not of pari mutuel machine used by the bettors in registering their bets. The game as defined might well be played without any machine whatever. “The person who-furnishes the pool ticket,” as easily conceived, might do so-without the aid of any automatic machine or apparatus whatever; he could use his hat or any other receptacle in which-to deposit the bets and give a written receipt to each bettor for the amount of his bet and the horse of his backing. From-his hat or a bucket or a basket the stake could be distributed among the winners, less a percentage. Neither the receptacle in which the bets are deposited nor the tickets issued to a bettor, nor both combined, would in the least determine who-was the winner or who the loser; nor can it be said that the person who presides over the receptacle, and who issues the pool tickets or receipts, either bets or determines the bets that are made. The pari mutuel machine and the proprietor thereof and the functions that they each perform are stated in the stipulation of the parties as follows:
“Said pari mutuel machine is an indicator of the number of tickets sold on each horse in a horse-race; not only an itemizer but a totalizer of said tickets. That the tickets are two-dollars ($2) apiece. At the time of the purchase of a ticket, the man who sells it calls out the name of the horse the ticket was purchased on to the man who operates the indicator or machine; said man registering the ticket sold. That the pari mutuel machine registers like an automatic turnstile the number of tickets sold upon each horse, and also registers the-total number of tickets sold upon the race. At the moment the race starts the machine is closed and no more tickets are sold upon the race. After the race is run and the result declared, all money taken in by the seller of tickets is evenly *415divided among those people who purchased tickets on the winning horse less ten per cent (10%) which is deducted by the operators of the machine as their commission. That the owners and operators of the machine did not wager any money upon the result of the race and that the division of the money is not determined by the pari mutuel machine or by the owners or operators thereof, but by the result of the horse-race and 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.”
A pari mutuel machine, it would seem, differs from the crude and primeval method of registering bets instanced above principally, in this: It is automatic; it is quicker, and free from mistakes. Because of this facility in operation, it is doubtless more attractive and alluring to persons desiring to place bets on contests, such as horse-racing and events of that*, kind. It has a tendency to emphasize, stabilize and encourage the evil of gambling; its business is to invite, encourage and facilitate wagering upon horse-racing.
Notwithstanding all this, the proprietor and owner of the machine and the machine, while forming the nucleus of a betting crowd, do not play the game of horse-racing; it is the crowd that plays the game; the proprietor and the machine hold the pool and distribute it after the race to the winners, retaining a percentage for their services. The machine, in and of itself, does not determine who wins or loses. It might be used in connection with any physical contest, whether of man or beast, as, for instance, in registering bets on foot-races, or boxing or jumping matches, on baseball contests, or on horse-racing or trotting races. In all these cases, however, the winner is determined, not by the pari mutuel machine, but by the contestants — the men or horses. It will be seen, therefore, that the pari mutuel machine, while used in connection with gambling, is not a device which determines who shall win or lose and is not a device with which a game is played; it is an instrumentality employed by those gambling, but it is not a device mentioned in the statute with which a game is. played.
The stipulation clearly shows that the game in this instance was a horse-race, and the courts have disagreed as to whether *416horse-racing is a game or not. We think those that hold that it is are not only in the majority, but are supported by the better reasoning. James v. State, 4 Okl. Cr. 587, 140 Am. St. Rep. 693, 34. L. R. A. (N. S.) 515, 112 Pac. 944; James v. .State (Okl. Cr.), 113 Pac. 226, 33 L. E. A. (N. S.) 827. And taking that view of the case, we find that there were people gambling on horses and that the appellant was not one of them. He was merely registering the bets and acting as stakeholder for the bettors, using the machine to facilitate his labors. ' True, he kept a percentage of every bet made, and if the pari mutuel machine was the arbiter of the contest, or in and of itself determined who was the winner or loser, he would .be within the statute, and the information would be sufficient.
A pari mutuel machine is as innocuous in and of itself as a ■faro-table without cards, a roulette-table without the ivory ’balls, a stein without beer, a goblet without wine. These are .•alike harmless without the complement of cards, balls, beer :and wine. So likewise, is the pari mutuel machine without the horse-race or other contest of chance.
It is plainly absurd to say a game of chance can be played with a pari mutuel machine in and of itself, and yet that is •what the information charges. It is as reasonable to say faro may be played with a faro-table alone; roulette, with a -roulette-table alone; beer drunk from an empty stein; or wine from an empty goblet.
There must be a contest of chance of some kind before the •pari mutuel machine is usable, and it must be operated in conmeetion with the contest of chance. The count of the information upon which appellant was convicted is silent as to any •contest of chance.
The power to say what acts or omissions shall constitute a •crime and be punished is entirely with the legislative department. It may limit or extend the law in that regard as it •chooses. It is the only department of the state vested with the right and power to define crimes and fix punishments. It ■may make all gambling, of whatever kind or nature, a crime. In the exercise of the police power for the public morals, it is all powerful. It might have made it a crime to bet on horse-racing or baseball contests or foot-racing, but it has not seen ffit to do so. It might have made it a crime to keep and oper*417ate a pari mutuel machine or any machine or apparatus used in connection with gambling, but it has not done so.
It is useless to say that courts cannot make laws or supply deficiencies or omissions in laws made by the legislature. "When their jurisdiction is invoked in a proper case, it is their duty to interpret and construe the law as they find it. The question for this court to decide in this case is whether the facts set forth in the count of the information upon which the appellant was convicted constitute a public offense. It is not whether what the appellant actually did constitutes a crime under the law or not, but whether the facts set forth in the information make out a crime. It is so clear to my mind that the facts charged do not constitute a public offense, that I would have to do violence to my conscience in order to sustain the information.
An information or indictment must contain “a statement of the acts constituting the offense in ordinary and concise language. ...” Section 934, Penal Code 1913. An inspection of the count of the information upon which appellant was convicted discloses that it does not set forth sufficient acts to -constitute an offense. The acts alleged, in and of themselves, do not show that appellant was playing a game with a device that determined who was the loser or the winner,