APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for further proceedings.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellant.
Mr. V. L. Hash, for Appellee.
[60 Ariz. 58] ROSS, J.
Buck Le Noir was informed against by the county attorney of Maricopa county, in three counts, for (1) permitting to be played, in a gambling house under his management, supervision and control, a game of craps, for money, checks and credits, such game being played with dice; (2) for conducting a banking game, and (3) for participating in a game of craps, played with dice, for money, checks, etc.
On arraignment he pleaded not guilty. Thereafter the county attorney dismissed as to Count 2. Later the defendant withdrew his plea of not guilty and presented his motion to quash Counts 1 and 3, upon the ground that the facts alleged do not constitute a public offense. This motion was granted and the state has appealed therefrom. Appellant takes the position that the information does state facts showing the commission of a public offense by appellee and that, therefore, the ruling of the court was erroneous.
[60 Ariz. 59] Counts 1and 3 are drawn under sections 43-2701 and 43-2702, Arizona Code 1939. Specifically the act charged in both Counts is that defendant, at the time and place alleged, played and permitted to be played, and participated in the game of craps, for money, checks and credits, a game similar to those enumerated in the statute.
Craps is a game of chance played with two dice. It is not named in the statute as forbidden. However, games of chance played with dice, for money, etc., under whatever name, are specifically forbidden. The statute (section 43-2701) reads:
"43-2701. Conducting gaming -- Participating therein -- Penalty. -- 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 game of faro, monte, roulette, lasquenet, rouge et noir, rondo, vingt-un, or twenty-one, poker, stud poker, draw poker, bluff, fan tan, thaw, seven and one-half, chuck-a-luck, blackjack, 'panginki,' or any similar game whatsoever, played with cards, dice, or any other device, and every slot machine, punchboard, or machine of like character, whether the same be played for money, checks, credits or any other representative of value within the state of Arizona; and every person who shall participate in any of the above-enumerated games dealt, carried on or opened or caused to be opened by any other person in the state of Arizona, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars ($100), nor more than three hundred dollars ($300), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment."
The next section reads:
"43-2702. Owner, lessee, and manager liable. -- If any proprietor, owner, or part owner, lessee, manager or any person having management, supervision, or control, temporary or permanent, of any gambling house or
other resort maintained for gambling or of [60 Ariz. 60] any building, shall permit any of the games mentioned in the preceding section to be played in such place, he shall be guilty of a misdemeanor, and upon conviction thereof ...