(dissenting). If Stith v. State, 13 Ark. 680, is correctly interpreted by the majority of the court, then in my opinion it should be overruled, as such construction is not consistent with the plain terms of the statute. But I do not agree with their construction of that opinion. The charge in that case was that the defendant knowingly permitted divers persons to play the game of poker in his house. The question was whether such charge fell within the fourth section of the statute against gambling. (Kirby’s Digest, § 1735.)
The difference between banking games and what were de.nominated small games was the point of discussion of the learned Chief Justice. He was not going into the other provisions of the statute relating to maintenance of gaming tables, gambling devices, etc., but was considering only the case in hand. This is evidenced by the language used in his conclusion of the subject: “Our opinion is, that the offense, designed to be punished by the fourth section (which is section 1735) is the suffering or permitting to be carried on or exhibited in any house, etc., by the owner or occupant thereof, any of the banking games, gaming tables or devices prohibited in the first section, and not the playing or betting at any of the games mentioned in the eighth section1' (italics mine).
The first section (Kirby’s Dig. § 1732) prohibits the setting up, keeping or'exhibiting “any gaming table or gambling device * * * * or any faro bank, or any other gambling table or device, or bank of the like or similar kind * * * adopted, devised or designed fpr the purpose of playing any game -of chance, etc.”
To restrict this to banking games when they are only one — • albeit the chief dhe aimed at — is contrary, in my opinion, to the plain terms of this statute. I do not so understand the Stith case. If it so rules, it ought to be quickly overruled.