359 P.2d 85
77 Nev. 25, 359 P.2d 85, 87 A.L.R.2d 645
(Cite as: 77 Nev. 25, 359 P.2d 85)
Supreme Court of Nevada.
LAS VEGAS HACIENDA, INC., a Nevada
Corporation, Appellant,
v.
George GIBSON, Respondent.
No. 4319.
Feb. 3, 1961.
Rehearing Denied March 2, 1961.
Action by golfer against corporate owner of golf
course to recover $5,000 offered by owner for
shooting hole in one. From judgment of the 8th
Judicial District Court, Clark County, A. S.
Henderson, J., in favor of golfer, defendant appealed.
The Supreme Court, McNamee, J., held that offer by
owner to pay $5,000 to any person who, having paid
50 cents for the opportunity of attempting to do so,
shot a hole in one on course, when accepted by
golfer, was a valid contract enforceable at law and
not a gambling contract.
Affirmed.
West Headnotes
[1] Gaming
25
188k25 Most Cited Cases
Although gambling, duly licensed, is a lawful
enterprise in Nevada, an action will not lie for the
collection of money won in gambling.
[2] Gaming
7
188k7 Most Cited Cases
Generally, in absence of statute, the offer of a prize to
a contestant therefor who performs a specified act is
not a gambling transaction.
[3] Contracts
16
95k16 Most Cited Cases
The offer by one party of specified compensation for
performance of certain act as proposition to all
persons who may accept and comply with conditions,
constitutes a promise by offeror; performance of that
act is consideration for such promise; and the result
is an enforceable contract.
[4] Gaming
1
188k1 Most Cited Cases
Page 1
[4] Gaming
7
188k7 Most Cited Cases
A "prize" or "premium" differs from a "wager" in that
in the former the person offering same has no chance
of gaining back thing offered, but, if he abides by
offer, he must lose; whereas in the latter each party
interested has a chance of gain and takes a risk of
loss.
[5] Gaming
6
188k6 Most Cited Cases
[5] Gaming
8
188k8 Most Cited Cases
Fact that each contestant is required to pay an
entrance fee, where entrance fee does not specifically
make up purse or premium contested for, does not
convert contest into a wager.
[6] Gaming
6
188k6 Most Cited Cases
Offer by owner of golf course to pay $5,000 to any
person who, having paid 50 cents for the opportunity
of attempting to do so, shot a hole in one on course,
when accepted by golfer, was a valid contract and
was not a gambling contract.
[7] Gaming
49(3)
188k49(3) Most Cited Cases
[7] Gaming
50(1)
188k50(1) Most Cited Cases
Question whether golfer's hole in one, shot upon offer
by owner of course to pay $5,000 to person doing so,
was a feat of skill, or was dependent upon chance,
was for determination of trial court, and evidence
sustained finding that shooting of hole in one was
feat of skill.
[8] Gaming
6
188k6 Most Cited Cases
Test of character of a game is not whether it contains
element of chance or
element of skill, but which is dominating element.
**85 *25 Calvin C. Magleby, Las Vegas, for
appellant.
**86 C. Norman Cornwall, Las Vagas, for
respondent.
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
359 P.2d 85
77 Nev. 25, 359 P.2d 85, 87 A.L.R.2d 645
(Cite as: 77 Nev. 25, 359 P.2d 85)
*26 McNAMEE, Justice.
Page 2
States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237.
There is no statute in Nevada prohibiting such offers.
Respondent commenced this action in the lower
court to recover the sum of $5,000 based on the
following transaction.
*27 Appellant made a public offer to pay $5,000 to
any who, having paid 50 cents for the opportunity of
attempting to do so, shot a hole in one on its golf
course. There were certain specified conditions in
connection with said offer.
The lower court found from the evidence that the
respondent complied with said conditions, that he
shot a hole in one, and that appellant refused to abide
by its offer. It further determined that this transaction
was a valid contract enforceable at law and not a
gambling contract. Judgment was entered in favor of
respondent in the sum of $5,000 plus interest and
costs. Appeal is from said judgment.
On this appeal we are not concerned with any factual
matters, the lower court properly having resolved
such matters in favor of respondent.
Appellant specified the following two errors:
1. The court below erred in not holding that the
alleged contract on which the action is based was a
wagering contract and therefore unenforceable.
2. The court below erred in finding that the shooting
of a 'hole in one' is a feat of skill and not a feat of
chance.
[1] Although gambling, duly licensed, is a lawful
enterprise in Nevada (Nevada Tax Commission v.
Hicks, 73 Nev. 115, 310 P.2d 852), an action will not
lie for the collection of money won in gambling.
Weisbrod v. Fremont Hotel, 74 Nev. 227, 326 P.2d
1104. It is therefore necessary to determine whether
the transaction between appellant and respondent in
this case constituted a gaming contract.
[2][3] It is generally held, in the absence of a
prohibitory statute, that the offer of a prize to a
contestant therefor who performs a specified act is
not invalid as being a gambling transaction. Porter v.
Day, 71 Wis. 296, 37 N.W. 259. The offer by one
party of specified compensation for the performance
of a certain act as a proposition *28 to all persons
who may accept and comply with its conditions
constitutes a promise by the offeror. The performance
of that act is the consideration for such promise. The
result is an enforceable contract. Robertson v. United
[4] A prize or premium differs from a wager in that
in the former, the person offering the same has no
chance of gaining back the thing offered, but, if he
abides by his offer, he must lose; whereas in the
latter, each party interested therein has a chance of
gain and takes a risk of loss. Toomey v. Penwell, 76
Mont. 166, 245 P. 943, 45 A.L.R. 993; Pompano
Horse Club v. State, 93 Fla. 415, 111 So. 801, 52
A.L.R. 51.
Balletine's Law Dictionary, 2d Ed., p. 1002, defines
premium as 'a reward or recompense for some act
done. It is known who is to give before the event. It
is not to be confounded with a bet or wager, for in a
wager, it is not known who is to give until after the
event.'
Misner v. Knapp, 13 Or. 135, 9 P. 65, 66, was an
action to recover the sum of $250 offered by
defendants to the owner of a horse that should trot a
mile in the best time, less than two minutes and
twenty-five seconds at City View Park, it being
alleged therein that plaintiff complied with the terms
and conditions specified.
The contention of
defendants that the purse offered was a bet or wager
and that no action would lie to enforce the payment
thereof was hold to be without merit, the court
saying:
'Now, according to the definition of 'wager,' there
must be two or more contracting parties, having
mutual rights in respect to the money or other thing
wagered or, as sometimes said, 'staked,' and each
of the parties necessarily **87 risks something, and
has a chance to make something upon the
happening or not happening of an uncertain event.
But a purse or prize offered by a party, and to be
awarded to the successful competitor in a contest in
which such party does not engage, nor has any *29
chance of gaining, but only, perhaps, of losing, is
without the element of a chance of gain or a risk of
loss which characterizes the wager agreement. The
distinction has been stated thus:
"In a wager or a bet, there must be two parties, and
it is known, before the chance or uncertain event
upon which it is laid or accomplished, who are the
parties who must either lose or win. In a premium
or reward there is but one party until the act or
thing or purpose for which it is offered has been
accomplished.
A premium is a reward or
recompense for some act done; a wager is a stake
upon an uncertain event. In a premium it is known
who is to give before the event; in a wager it is not
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
359 P.2d 85
77 Nev. 25, 359 P.2d 85, 87 A.L.R.2d 645
(Cite as: 77 Nev. 25, 359 P.2d 85)
known until after the event. The two need not be
confounded.' Alvord v. Smith, 63 Ind. 59.'
[5] The fact that each contestant is required to pay
an entrance fee where the entrance fee does not
specifically make up the purse or premium contested
for does not convert the contest into a wager.
Toomey v. Penwell, supra.
[6] Inasmuch as the contesting for a prize offered by
another, which the one offering must lose in the event
of compliance with the terms and conditions of his
offer is not gambling, it was not error to hold that the
said contract was valid and enforceable.
[7] Whereas we have concluded that the contract
does not involve a gaming transaction, consideration
of appellant's second assignment of error, that the
lower court erred in finding that the shooting of a
'hole in one' was a feat of skill, becomes unnecessary.
We do wish to state however that the record contains
sufficient evidence to sustain the court's finding in
this regard. Appellant insists however that the
testimony of one Capps, a golf professional,
precludes such a finding. He testified that luck is a
factor in all holes in one where skill is not *30 always
a factor. He further testified that 'a skilled player will
get it (the ball) in the area where luck will take over
more often than an unskilled player.'
[8] The test of the character of a game is not
whether it contains an element of chance or an
element of skill, but which is the dominating element.
People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71
N.E. 753, 66 L.R.A. 601. It was within the province
of the trial court to determine this question. Brown v.
Board of Police Commissioners, 58 Cal.App.2d 473,
136 P.2d 617.
Affirmed.
BADT, C. J., and PIKE, J., concur.
77 Nev. 25, 359 P.2d 85, 87 A.L.R.2d 645
END OF DOCUMENT
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 3
Page 1
992 A.2d 190, 2010 PA Super 47
(Cite as: 992 A.2d 190)
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant
v.
Diane Alice DENT, Appellee.
Commonwealth of Pennsylvania, Appellant
v.
Walter Leroy Watkins, Appellee.
Argued Oct. 21, 2009.
Filed March 25, 2010.
Background: Defendants who were charged with
unlawful gambling petitioned for writ of habeas corpus. The Court of Common Pleas, Columbia/Montour County, Criminal Division at Nos.
CP-19-CR-0000733-2008
and
CP-19-CR-0000746-2008,James, J., granted petitions
and dismissed charges. Commonwealth appealed.
Holdings: The Superior Court, Nos. 167 MDA 2009
and 168 MDA 2009,Freedberg, J., held that:
(1) Texas Hold 'Em Poker is gambling because it is
predominantly a game of chance; and
(2) that game is unlawful gambling because it is not
specifically authorized by legislature.
Reversed, remanded, and jurisdiction relinquished.
Colville, J., filed a dissenting opinion.
West Headnotes
[1] Gaming 188
68(1)
188 Gaming
188III Criminal Responsibility
188III(A) Offenses
188k68 Games, Sports, and Devices Prohibited
188k68(1) k. Dice and cards. Most
Cited Cases
Under the predominate-factor test, Texas Hold 'Em
Poker is “gambling” because while the outcome may
be dependent on skill to some degree, it is predominantly a game of chance.
[2] Gaming 188
188 Gaming
188III Criminal Responsibility
188III(A) Offenses
188k68 Games, Sports, and Devices Prohibited
188k68(1) k. Dice and cards. Most
Cited Cases
Texas Hold ‘Em Poker is “unlawful gambling” under
criminal statute because it has not been authorized by
the legislature. 18 Pa.C.S.A. § 5513(a).
[3] Habeas Corpus 197
845
197 Habeas Corpus
197III Jurisdiction, Proceedings, and Relief
197III(D) Review
197III(D)2 Scope and Standards of Review
197k845 k. Questions of law and fact.
Most Cited Cases
Whether Commonwealth established prima facie case
of unlawful gambling at hearing on omnibus pretrial
motion, which included a motion for relief in the nature of habeas corpus, was question of law and, thus,
Superior Court's scope of review on appeal from order granting habeas relief and dismissing gambling
charges arising out of games of Texas Hold ‘Em
Poker in a garage under the control of defendants was
limited to determining whether the trial court committed an error of law, where the facts were not in
dispute. 18 Pa.C.S.A. § 5513(a).
[4] Gaming 188
64.1
188 Gaming
188III Criminal Responsibility
188III(A) Offenses
188k64 Elements of Criminal Gaming
188k64.1 k. In general. Most Cited
Cases
There are three elements to “gambling”: consideration, chance, and reward.
*191 Thomas E. Leipold, Assistant District Attorney,
for Commonwealth, appellant.
Howard J. Bashman, Willow Grove, for appellee.
68(1)
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
992 A.2d 190, 2010 PA Super 47
(Cite as: 992 A.2d 190)
BEFORE: FORD ELLIOTT, P.J., FREEDBERG,
and COLVILLE FN*, JJ.
FN* Retired Senior Judge assigned to the
Superior Court.
OPINION BY FREEDBERG, J.:
¶ 1 The Commonwealth appeals from an order entered on January 14, 2009, by the Court of Common
Pleas of Columbia County, which granted Appellees',
Diane Dent and Walter Watkins, petition for a writ of
habeas corpus and dismissed the criminal charges
against them. We reverse and remand.
¶ 2 The relevant facts and procedural history of this
matter are taken from the trial court's January 14,
2009 opinion. In September 2008, Appellees were
charged with twenty (20) counts of violating 18 Pa.
Cons.Stat. Ann. §§ 5513(a)(2), (a)(3), and (a)(4),
relating to unlawful gambling. Appellees filed an
omnibus pretrial motion including a motion for relief
in the nature of habeas corpus. A hearing and argument occurred on December 15, 2008.
¶ 3 At the hearing, Pennsylvania State Police Trooper
David Darrow testified that in July and August 2008,
while undercover, he participated in games of Texas
Hold ‘Em Poker FN1 in a garage under the control of
Appellees. N.T. 12/15/08 at 4-5. Trooper Darrow
stated that immediately prior to the start of the game,
each player would approach Appellee Dent, who
acted as the dealer, and pay money to obtain chips. Id.
at 6. During the course of the game, the players
placed bets worth $1.00 or $2.00 into the “pot” and at
the conclusion of each game the winner would receive the pot. Id. at 10. The practice during the games
was that the winner who received the “pot” would tip
the dealer. Id. While there was no set amount, players
were encouraged to tip appropriately and to tip a
larger amount if they won a bigger “pot.” Id.
FN1. In Texas Hold ‘Em Poker:
each player is dealt two private cards face
down. The cards are referred to as the hole
cards. Now the initial betting round takes
place. After that, three public cards (the
flop ) is (sic) placed face up in the middle
of the table. The second betting round
follows. When the betting round has finished, another public card (the turn ), is
placed alongside the flop. Next is the third
betting round. After that, the final, fifth,
public card (the river ) is turned up, followed by the final betting round. Each
player still remaining in the pot now combines the public cards with her hole cards
to obtain a five card poker hand. When
doing so, it is possible to use one, both or
none of the hole cards to obtain a five card
poker hand. Naturally, the player now (at
the showdown ) having the best poker
hand wins the pot.
Trial Court Opinion dated 1/14/09 p. 2 n.
2 (internal citations omitted) (emphasis in
original).
¶ 4 The parties agreed that the three elements of
gambling under Pennsylvania law are consideration,
chance, and reward. Id. at 19. They further stipulated
that *192 elements one and three were present because, to participate in the game, the players had to
wager money, and, if they won the game, they were
rewarded with money. Id. at 20. The parties agreed
that the controlling question for the trial court was
whether the element of chance predominates over
skill in the game of Texas Hold ‘Em Poker. Id. at
21-22. On January 14, 2009, the trial court issued an
opinion finding that, because skill predominated over
chance, Texas Hold ‘Em Poker is not unlawful gambling pursuant to 18 Pa. Cons.Stat. Ann. §§
5513(a)(2), (a)(3), and (a)(4). Accordingly, the trial
court granted the motion and dismissed the charges.
¶ 5 The Commonwealth filed a timely appeal. It was
then ordered to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth filed its statement, and
the trial court then issued an opinion, relying on its
January 14, 2009 opinion
[1][2] ¶ 6 On appeal, the Commonwealth raises one
issue for our review:
1. Whether the lower court committed an error of
law in concluding that ‘Texas Hold ’[E]m' Poker is
not unlawful gambling under the Pennsylvania
Crimes Code?
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
992 A.2d 190, 2010 PA Super 47
(Cite as: 992 A.2d 190)
Commonwealth's Brief at 3.
[3] ¶ 7 In the instant matter, where the facts are not in
dispute, the determination of whether the Commonwealth has established a prima facie case is a question of law. Commonwealth v. Marti, 779 A.2d 1177,
1180 (Pa.Super.2001). Thus, our scope of review is
limited to determining whether the trial court committed an error of law. Id.
¶ 8 Appellees were charged with violating 18 Pa.
Cons.Stat. Ann. §§ 5513(a)(2), (a)(3), and (a)(4),
which provide:
§ 5513. Gambling devices, gambling, etc.
(a) Offense defined.-A person is guilty of a misdemeanor of the first degree if he:
***
(2) allows persons to collect and assemble for the
purpose of unlawful gambling at any place under
his control;
(3) solicits or invites any person to visit any unlawful gambling place for the purpose of gambling;
or
(4) being the owner, tenant, lessee or occupant of
any premises, knowingly permits or suffers the
same, or any part thereof, to be used for the purpose of unlawful gambling.
The statute does not define “unlawful gambling.”
¶ 9 Neither a statute nor case law specifically addresses the legality of Texas Hold ‘Em Poker. To
resolve this appeal, we must first determine whether
Texas Hold ‘Em Poker is gambling. If so, then we
must decide whether it is “unlawful” as that term is
used in § 5513.
[4] ¶ 10 There are three elements to gambling: consideration, chance, and reward. Commonwealth v.
Two Electronic Poker Game Machines, 502 Pa. 186,
465 A.2d 973, 977 (1983). As noted, the parties
agreed that both consideration and reward have been
established by the Commonwealth's evidence.
¶ 11 Pennsylvania appellate courts have not definitively addressed the precise question of whether poker is a game of chance or a game of skill. In a 1983
forfeiture action, the Pennsylvania Supreme Court
ruled in three cases under Section 5513 with respect
to whether certain electronic game machines constituted “gambling devices per se.” Two Electronic
Poker Game Machines, 465 A.2d at 975. In deciding
that certain of the machines did constitute gambling
devices per se, the *193 Supreme Court discussed the
three elements of “gambling” and then set forth the
“predominate-factor test,” which holds that for a
game to constitute gambling, it must be a game
where chance predominates rather than skill. Id. at
977. The Supreme Court stated that, in making this
determination, the court should determine the relative
amount of chance and skill present in the game; and
if the element of chance predominates, the game is a
gambling game. Id. at 978. The Supreme Court concluded that the poker machines were gambling devices, stating:
While appellee has demonstrated that some skill is
involved in the playing of Electro-Sport, we believe that the element of chance predominates and
the outcome is largely determined by chance.
While skill, in the form of knowledge of probabilities, can improve a player's chances of winning and
can maximize the size of the winnings, chance ultimately determines the outcome because chance
determines the cards dealt and the cards from
which one can draw-in short, a large random element is always present. That the skill involved in
Electro-Sport is not the same skill which can indeed determine the outcome in a game of poker
between human players can be appreciated when it
is realized that holding, folding, bluffing and raising have no role to play in Electro-Sport poker.
Skill can improve the outcome in Electro-Sport; it
cannot determine it.
Id. at 978 (internal citations omitted).
¶ 12 In Liquor Control Bd. v. Kehler, 114 Pa.Cmwlth.
310, 538 A.2d 979 (1988), the Commonwealth Court
reversed the finding of the trial court which had reversed a decision of the Liquor Control Board, which
found a licensee in violation of the Liquor Code, Act
of April 12, 1951, P.L. 90, as amended, 47 P.S. §§
1-101-9-902, for allowing gambling (a poker game)
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
992 A.2d 190, 2010 PA Super 47
(Cite as: 992 A.2d 190)
on his premises. In looking at the conjunction of Section 5513 of the Crimes Code and the Liquor Code,
the Commonwealth Court stated:
result is determined by some unforeseen accident,
usually called ‘luck.’
Id. at 755 (emphasis added).
In the past when we have upheld sanctions against
licensees for gambling on the premises, this Court
has dealt with factual circumstances which clearly
indicated that the particular gambling activity under consideration was a violation of the Crimes
Code. While we are not prepared to hold and need
not decide that poker playing is “unlawful gambling” under the Crimes Code, we now hold that
the Board's burden in the instant case was only to
prove that gambling was occurring and that that activity was sufficient cause for the Board's action. It
need not prove that the Crimes Code was in fact
violated.
Our Court, in dealing with the term, had held that
the three elements of gambling are consideration,
chance and reward.
We believe that poker playing on a licensed premises is gambling within that definition. Certainly all
three elements ... are present in a poker game. In
order to participate, one must “ante up” money; the
winner is determined by the luck of the cards
drawn (and a lot of bluffing); and the winner takes
the “pot.”
Id. at 981 (internal citations and footnotes omitted)
(emphasis in original).
¶ 13 Courts in other jurisdictions have addressed the
issue of what constitutes a game of chance versus a
game of skill, both in the context of poker and other
games. In an early case, the Court of Appeals of New
York noted that the “prohibition and regulation of
gambling in all forms and lotteries of every kind are
unquestionably valid exercises of legislative power.”
People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71 N.E.
753, 754 (1904). The *194 Court of Appeals went on
to note the difficulties of distinguishing between
games of chances and games of skill:
Throwing dice is purely a game of chance, and
chess is purely a game of skill. But games of cards
do not cease to be games of chance because they
call for the exercise of skill by players, nor do
games of billiards cease to be games of skill because, at times, especially in the case of tyros, their
¶ 14 In a 1911 case, the Supreme Court of Missouri
upheld the conviction of a man for unlawful gambling, finding that a room set up for the purpose of
“games of chance for money, property, and poker
chips,” and the maintaining of gaming tables used for
the purpose of playing poker fell within the state's
unlawful gambling laws. State v. Cannon, 232 Mo.
205, 134 S.W. 513, 514-15 (1911).
¶ 15 In a 1919 case, the Supreme Court of Nevada
granted a petition for a writ of habeas corpus to a
man who had been convicted under the state's lottery
laws for operating a “nickel-in-the-slot” machine
parlor. Ex Parte Pierotti, 43 Nev. 243, 184 P. 209
(1919). While distinguishing the lottery from games
of chance, the Supreme Court stated that it was “absurd” to find that card games were games of skill
rather than games of chance, “[a]ny game played
with cards in which the hand at cards depends on a
dealing with the face down is a game of chance.” Id.
at 211.
¶ 16 In 1927, the Supreme Court of Oregon found
sufficient evidence to sustain an indictment against
two men accused of operating illegal Keno tables.
State v. Randall, 121 Or. 545, 256 P. 393 (1927).
Oregon State law prohibited playing or conducting of
certain enumerated games of chance (including poker) and/or games of chance played with dice, cards,
or other devices for value. Id. at 393. The defendants
argued that Keno was a game of skill rather than a
game of chance and that therefore the prizes awarded
to the winners were a reward for skill. Id. at 394. In
holding that Keno was a game of chance, the Supreme Court stated:
[Keno] was under every essential element as much
a game of chance as faro, poker, or any other game
played with cards or any gambling device. In all
card games there is more or less an element of skill.
Take, for instance, the great American game of
poker; we have no doubt, if a couple of gamblers
sat down to play this game against a couple of
ministers, who presumably do not indulge in it, that
the ministers would soon be destitute of “chips”
and the gamblers' pile augment accordingly. It is
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
992 A.2d 190, 2010 PA Super 47
(Cite as: 992 A.2d 190)
true there is an element of chance in poker, and a
very large element at that, there is an element of
chance in faro or any other game played with cards,
but in any of these there is also some element of
skill.
Id. at 394 (emphasis added).
¶ 17 In 1928, the Supreme Court of Utah discussed
the argument regarding games of chance versus
games of skill in a case regarding a contract dispute
over the sale of certain equipment used in gambling
games. D'Orio v. Startup Candy Co., 71 Utah 410,
266 P. 1037 (1928). The Court opined that card
games that included dealing cards face down were
games of chance because, “[i]f the card (sic) are fairly dealt, the most skillful player cannot tell in advance what kind of hand he will draw.” Id. at 1039.
¶ 18 In 1935, the Supreme Court of Kansas held that
the game of five-card stud poker was not a “confidence game” or “swindle” or “any such game” under
a *195 statute intended to prohibit the dealing, playing, or practicing of “three-card monte.” State v.
Terry, 141 Kan. 922, 44 P.2d 258 (1935). The Supreme Court noted, however, that poker was a gambling game that was a combination of skill and
chance. Id. at 259-60.
¶ 19 In a 1971 case, the Supreme Court of Washington ruled that the game of “low poker” constituted
unlawful gambling under a statute prohibiting the
conducting or allowing of gambling on premises.
State v. Barnett, 79 Wash.2d 578, 488 P.2d 255
(1971). The Supreme Court stated that playing games
of cards for money, property, or anything of value,
constituted gambling within the meaning of statutes
prohibiting or penalizing gambling. Id. The Court
concluded:
[W]hile reliance upon the chance element in the instant [card] games may depend in some degree
upon how evenly matched in skill the participants
are, the trial court's finding that these games involved a substantial element of chance is sustained
by the evidence. The element of chance in the instant card games [including “low poker”] satisfies
the requisite element of chance for a gambling
game ...
Id. at 258-59.
¶ 20 In a 1995 case, the Criminal Court of the City of
New York refused to dismiss an indictment for possession of a gambling device, namely the equipment
used in “the shell game.” People v. Turner, 165
Misc.2d 222, 629 N.Y.S.2d 661 (N.Y.Crim.Ct.1995).
In its decision, the court noted that the term “games
of chances” was broadly defined, including games
that required no skill, such as a lottery, to games like
poker, which required considerable skill. Id. at 662.
The court stated that, despite the fact that poker required skill, it was “as much [a game] of chance as
[the lottery] since the outcome depends to a material
degree upon the random distribution of cards. The
skill of the player may increase the odds in the player's favor, but cannot determine the outcome regardless of the degree of skill employed.” Id. (citations
omitted).
¶ 21 In a recent decision, the Court of Appeals of
North Carolina affirmed a decision in a declaratory
judgment action, which held that poker is a game of
chance rather than a game of skill and, thus, is illegal
under North Carolina law. Joker Club, L.L.C. v. Hardin, 183 N.C.App. 92, 643 S.E.2d 626 (2007). At trial,
the plaintiff presented the testimony of four experts, a
professional poker player, a consultant who ran poker
tournaments, a casino manager, and an amateur player. Id. at 629. Each testified that poker was a game of
skill because strategies can improve a player's odds;
when multiple hands are played a skilled player is
likely to prevail over an unskilled player; a player can
learn certain skills that will allow him or her to win
consistently; and studying books on strategy and implementing the strategies contained therein can help a
player improve his or her skills. Id. The defense presented the testimony of an alcohol law enforcement
officer, who had played poker for over 39 years. Id.
He testified that while there was skill involved in
poker, luck ultimately prevailed.
¶ 22 The trial court concluded that it was unable to
determine, based on the testimony, whether chance or
skill predominated in the game of poker but, nonetheless, concluded that poker was a game of chance
within the meaning of North Carolina's statutory prohibition against wagering on games of chance. Id.
The Court of Appeals affirmed, analyzing the case
under the predominate-factor test; it stated:
*196 [W]hile all games have elements of chance,
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games which can be determined by superior skill
are not games of chance. For example, bowling,
chess, and billiards are games of skill because skill
determines the outcome. The game itself is static
and the only factor separating the players is their
relative skill levels. In short, the instrumentality for
victory is in each player's hands and his fortunes
will be determined by how skillfully he use (sic)
that instrumentality.
Although chance inevitably intervenes, it is not inherent in the game and does not overcome skill,
and the player maintains the opportunity to defeat
chance with superior skill. Whereas in poker, a
skilled player may give himself a statistical advantage but is always subject to defeat at the turn
of a card, an instrumentality beyond his control.
We think that is a critical difference.
Joker Club, L.L.C. v. Hardin, 643 S.E.2d at 630-31.
Poker, however, presents players with different
hands, making the players unequal in the same
game and subject to defeat at the turn of a card.
Although skills such as knowledge of human psychology, bluffing, and the ability to analyze odds
make it more likely for skilled players to defeat
novices, novices may yet prevail with a simple run
of luck. No amount of skill can change a deuce into
an ace. Thus, the instrumentality for victory is not
entirely in the player's hand. In State v. Taylor, our
Supreme Court noted this distinction. 111 N.C. 680,
16 S.E. 168 (1892).
It is a matter of universal knowledge that no
game played with ordinary playing cards is unattended with risk, whatever may be the skill,
experience or intelligence of the gamesters engaged in it. From the very nature of such games,
where cards must be drawn by and dealt out to
players, who cannot anticipate what ones may be
received by each, the order in which they will be
placed or the effect of a given play or mode of
playing, there must be unavoidable certainty as
to the results.
Id. at 681-82, 16 S.E. at 169.
This is not so with bowling, where the player's skill
determines whether he picks up the spare; or with
billiards, where the shot will find the pocket or not
according to its author's skill. During oral argument,
counsel for plaintiff analogized poker to golf, arguing that while a weekend golfer might, by luck,
beat a professional golfer such as Tiger Woods on
one hole, over the span of 18 holes, Woods' superior skill would prevail. The same would be true
for a poker game, plaintiff contended, making poker, like golf, a game of skill. This analogy, while
creative, is false. In golf, as in bowling or billiards,
the players are presented with an equal challenge,
with each determining his fortune by his own skill.
¶ 23 Applying the “predominate-factor test” as enunciated by the Pennsylvania Supreme Court in Two
Electronic Poker Machines, we agree with the cases
cited above that, while the outcome of poker may be
dependent on skill to some degree, it is predominantly a game of chance. While, as noted in Two Electronic Poker Machines, skill can determine the outcome in a poker game, FN2 players are still subject to
defeat at the turn of the cards.
FN2. The Pennsylvania Supreme Court did
not hold that poker played in a game among
competitors is a game wherein skill predominates. That issue was not before the
court. Rather the issue was whether electronic poker machines were gambling devices subject to forfeiture.
*197 ¶ 24 Having found that Texas Hold ‘Em Poker
is gambling, we turn to the question of whether it is
“unlawful gambling.” In a 1975 case, this Court analyzed the term ‘unlawful gambling’ as used in Section 5513, sustaining a conviction for unlawful gambling. Commonwealth v. Betres, 237 Pa.Super. 361,
352 A.2d 495 (1975). In holding that the omission of
definitions for ‘unlawful gambling’ and ‘unlawful
gambling place’ did not render Section 5513 unconstitutional, we analyzed the issue as follows:
While the statute in the instant case could be more
clear, it is not so vague that we cannot determine
what the legislature intended when it used the
terms ‘unlawful gambling’ and ‘unlawful gambling
place.’ The legislature has specifically authorized
certain types of gambling such as the state lottery,
harness racing, and thoroughbred racing. When the
term unlawful gambling was used by the legislature
they could have intended no other meaning than
gambling not specifically authorized by the Commonwealth. This reasonable common sense inter-
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pretation is supported by Section 5512 of the
Crimes Code. That section which deals with lotteries defines the term ‘unlawful’ as follows, ‘As used
in this section the term ‘unlawful’ means not specifically authorized by law.' There is no reason
why the legislature would have intended ‘unlawful’
to have any different meaning in Section 5513 than
it was given in Section 5512. Therefore the term
‘unlawful,’ as used in Section 5513 means not specifically authorized by law. A person who owns or
who is in control of an establishment such as contemplated by the statute and who conducts and
[sic] type of gambling therein, except, of course,
gambling authorized by law, may be prosecuted
under this section.
Id. at 498-99.
¶ 25 As noted in Betres, the legislature has regulated
horse racing, 4 P.S. § 325.101, the lottery, 72 P.S. §
3761-101, playing of Bingo, 10 P.S. § 301, and use of
slot machines, 4 Pa.C.S.A. § 1101. The holding of
Betres that “unlawful gambling” is any gambling that
has not been authorized by the legislature controls the
disposition of the instant case. Betres, 352 A.2d at
498-99.
¶ 26 This conclusion is buttressed by the recent passage and signing of the amendments to Pennsylvania
Horse Race Development and Gaming Act, 4
Pa.C.S.A. § 1101, et. seq., to allow for the authorization of table games, specifically naming poker as one,
in certain licensed commercial facilities. See S.B. 711
2009, §§ 1102(2.1), 1103. The amendment further
gives the Pennsylvania Gaming Control Board general and sole regulatory authority over the conduct
and playing of table games, including poker, among
others. Id. § 1202(a)(1). There would have been no
reason for the legislature to act to authorize playing
of poker in certain facilities if playing poker did not
constitute “unlawful gambling” prior to said authorization.
¶ 27 For these reasons, we conclude that the Commonwealth presented sufficient evidence to establish
a prima facie case that Appellees violated the applicable provisions of the Crimes Code. Accordingly,
we reverse the Order of January 14, 2009, and remand for further proceedings consistent with this
decision.
*198 ¶ 28 Order REVERSED. Case REMANDED.
Jurisdiction RELINQUISHED.
¶ 29 Judge COLVILLE files a Dissenting Opinion.
DISSENTING OPINION BY COLVILLE, J.:
¶ 1 I would affirm the trial court's order, albeit on
different grounds than those presented by that court. I,
therefore, dissent.
¶ 2 The Commonwealth has accused Appellants of
hosting Texas Hold'em Poker tournaments. Ultimately, for Appellants to be found guilty in this case,
the Commonwealth would have to prove beyond a
reasonable doubt that Appellants engaged in “unlawful gambling” by hosting these tournaments. The
relevant criminal statute does not define “gambling.”
Moreover, as the Majority observes, “[n]either a statute nor case law specifically address the legality of
Texas Hold'em Poker.” Majority Opinion at 192.
¶ 3 However, the Statutory Construction Act informs
us,
Words and phrases shall be construed according to
rules of grammar and according to their common
and approved usage; but technical words and
phrases and such others as have acquired a peculiar
and appropriate meaning or are defined in this part,
shall be construed according to such peculiar and
appropriate meaning or definition.
1 Pa.C.S.A. § 1903(a). “Gambling” is a technical
word that has acquired a peculiar and appropriate
meaning. More specifically, an activity constitutes
gambling if it has three elements: consideration,
chance, and reward. Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d
973, 977 (1983).
¶ 4 It is undisputed that the games played at Appellants' Texas Hold'em Poker tournaments contained
the elements of consideration and reward. Appellants,
however, filed a pre-trial petition for writ of habeas
corpus, arguing that the Commonwealth could not
produce sufficient evidence to establish a prima facie
case against Appellants insomuch as the Commonwealth could not “show that the element of chance
dominates and the outcome of the game[s were] determined predominately by chance rather than skill.”
Omnibus Pretrial Motion, 10/24/08, at ¶ 11.
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992 A.2d 190, 2010 PA Super 47
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¶ 5 “The Commonwealth establishes a prima facie
case when it produces evidence that, if accepted as
true, would warrant the trial judge to allow the case
to go to a jury.” Commonwealth v. Marti, 779 A.2d
1177, 1180 (Pa.Super.2001) (quoting Commonwealth
v. Martin, 727 A.2d 1136, 1142 (Pa.Super.1999)). As
to the element of chance, the Majority opines “that
for a game to constitute gambling, it must be a game
where chance predominates rather than skill.” Majority Opinion at 5.
¶ 6 At the hearing on Appellants' writ of habeas corpus, the only evidence offered by the Commonwealth
was the testimony of Pennsylvania State Police
Trooper David Darrow. Trooper Darrow primarily
described the game played at Appellants' tournaments.
The Trooper did make passing reference to his views
on the roles chance and skill played in these
games.FN1 However, the Commonwealth failed to
present any evidence which, if accepted as true,
would prove that the games played at Appellants'
Texas Hold'em Poker tournaments were games where
chance predominated rather than skill. In other words,
*199 the Commonwealth failed to meet its burden of
proof at the hearing.FN2
nately a game of skill. Although the Majority reaches
a different result than that of the trial court, the Majority repeats the mistake of the trial court by failing
to examine whether the Commonwealth met its burden of proof at the hearing. Instead, the Majority
looks to the decisions of our sister states in concluding that the games played at Appellants' alleged
tournaments constituted gambling.
¶ 8 In my view, the Commonwealth simply failed to
meet its burden of establishing a prima facie case in
that it failed to produce evidence, if accepted as true,
that would warrant the trial judge to allow a jury to
decide Appellants' “unlawful gambling” cases. Consequently, I would affirm the trial court's order, albeit
on different grounds than those put forward by that
court.
Pa.Super.,2010.
Com. v. Dent
992 A.2d 190, 2010 PA Super 47
END OF DOCUMENT
FN1. See N.T., 12/15/08, at 13 (“You don't
have to know anything. You could go there
as an idiot and you may get lucky but over
the course of time it would be beneficial to
know the game of poker[.]”).
FN2. It is worth noting that, in Two Electronic Poker Game Machines, supra, in order to prove that the machines at issue in
that case were illegal gambling devices, the
Commonwealth offered an expert witness
who “testified that no skill was involved in
playing the game.” Two Electronic Poker
Game Machines, 465 A.2d at 978. In my
view, had the Commonwealth offered similar evidence during Appellants' hearing, it
would have met its burden of proof.
¶ 7 Rather than focusing on the evidence presented
by the Commonwealth at the hearing and determining
whether that evidence, if accepted as true, would be
enough to warrant submitting the case to a jury, the
trial court looked to, inter alia, treatises and studies
in concluding that Texas Hold'em Poker is predomi-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.