dissenting:
The position of the State of Illinois on gambling is ambivalent, inconsistent, contradictory and self-serving. We have State regulated race track betting. We have bingo. We have the Illinois State Lottery.
People gamble in their homes. They gamble on the golf course. They bet on baseball, basketball, football, and prize fights. They shop at certain stores so they can be in the store’s weekly lottery drawing. They buy and sell futures contracts through their stockbrokers. They gamble in taverns, private clubs and fraternal organizations.
Gambling is more than endemic in Illinois. It is epidemic. Officially, however, it is illegal in most situations. How is this illegality recognized? It is tolerated, accepted, smiled at, and, in rare instances, prosecuted. If all of the illegal gambling in Illinois were totted up for the purpose of computing the percentage of gambling that is prosecuted, prosecutions would equal an infinitesimal fraction of one percent. No one could doubt that. Yet gambling prosecutions continue in selected cases. A good argument could be made that any gambling prosecution is unconstitutional as involving an unequal application of the laws.
The instant case is just so.
Defendants paid $500 each to enter a game called “Hold 'em” poker. There were nine players. Chips were issued in denominated values of $50, $20 and $5. These chips were not redeemable but would be used to play successive poker hands. At the end of the game, the-player with the most value in chips would receive a prize of $3,500 and the player with the next most value in chips would receive $1,000. The $4,500 would be paid from the entrance fee of $500 paid by each of the nine players. There was to be no cut for the house and no refund for any chips. No part of the entry fee would be refunded once the game had begun.
Unfortunately for the defendants in this case, one of the nine players in the game in question was undercover officer William Pennell, a special agent with the Illinois Division of Criminal Investigation. He was also an unskilled and unlucky poker player. He lost $500 in the first game of “Hold 'em” and $250 in a second game which was played for smaller stakes. The $750 which he lost was not his money, of course. It was seed money advanced to Pennell by the State of Illinois, the proprietor of the Illinois State Lottery, for the purpose of ferreting out evidence against gambling.
The two defendants were subsequently charged by the State of Illinois, tried and found guilty of gambling. They were fined $50 each and ordered to refund Pennell’s $750 seed money, presumably to be used by Pennell in future evidence gathering operations regarding gambling.
Defendants have appealed, claiming that the statute on gambling exempts their particular activity from prosecution.
What does the statute say?
First of all, it says that a person commits gambling when he plays a game of chance or skill for money or other thing of value, unless excepted in subsection (b) of section 28 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1).
What does the exception in subsection (b) say? It says:
“(b) Participants in any of the following activities shall not be convicted of gambling;
* * *
(2) Offers of prizes, award or compensation to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance ***.’’ (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 28-1(b)(2).
The defendants quite correctly claim that the game of “Hold 'em” poker which they were playing was a contest for the determination of skill. And it might be said that the element of endurance was also involved. The money paid at the conclusion of the contest was prize money for the two most skillful contestants. It must be remembered that no hand of cards was played for money. Additional chips could not be purchased during the game. And at no time could the chips be cashed in for anything. If a person dropped out before the end of the game, his chips were valueless. The fund from which the two prizes were paid was created from the entrance fees.
The State argues that poker is not a game of skill but is a game of pure chance or luck. This allegation is a canard. Anyone familiar with even the barest rudiments of the game knows better. Pure luck? Send a neophyte player to a Saturday night poker game with seasoned players and he will leave his clothes behind and walk home in a barrel. Pure luck? This is true of bingo or lottery. But it cannot be said of poker. The court should take judicial notice that poker is a game of skill. It cannot be gainsaid, of course, that there is an element of luck in poker. Of course there is. There is an element of luck in everything in life. Even the prosecution of a lawsuit contains an element of luck. But everything that contains an element of luck is not gambling.
The payment of the specified entry fee in order to enter the instant contest was no different than the payment of an entry fee to enter a bridge tournament, chess tournament, bowling tournament or golf tournament. In such tournaments, the entry fee is not refundable. Some such tournaments involve the receipt of cash prizes while others result in trophies. Compensation and prizes in contests of skill are exempted by statute. The fact that the prize here was cash instead of a trophy is of no moment. That does not make it gambling. So far as prizes are concerned, even the smallest trophy has a value. If defendants are guilty of gambling because they participated in a contest involving cash prizes, then everyone and anyone receiving a trophy or ribbon in any type contest is guilty of gambling. Such a strained construction cannot be the law.
The question here is one of law. It is not a question of whether one is for or against gambling. It is not a question of whether poker playing is gambling in popular parlance. The question, rather, is whether these particular defendants in this particular game of “Hold 'em” poker brought themselves within a particular prohibited section of the gambling statute. And secondly, if their activity constituted prohibited gambling in the first instance, was it excepted from prosecution by the exception in the statute?
Clearly, as a matter of law, the defendants are not guilty. They are entitled to a judgment of acquittal. Accordingly, I dissent.