Ex parte Williams

I concur. Section 330 of the Penal Code provides that: “Every person who deals, plays, or carries on, opens, or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, tan, fan-tan, stud horse poker, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards or dice or any device, for money, checks, credit, or other representative of value,” is guilty of a misdemeanor. It is clear from the language of this section that it is a misdemeanor to conduct or carry on a slot machine or any other device played for money, checks, or credits, but we are here called upon to determine whether a person who conducts or carries on such a device played for cigars and tobacco is likewise guilty of an infraction of the law. Such acts as those enumerated in this and similar statutes are crimes only because they are prohibited by law, and unless the act charged against the petitioner is so prohibited, he is entitled to his discharge. If it is forbidden by law at all, it must be because cigars and tobacco are representatives of value, within the meaning of the…

The petitioner was engaged in the saloon business, also selling cigars and tobacco in the city of Petaluma, and had therein a slot machine used by his customers in gambling for cigars. The complaint on which the petitioner was charged, arrested, tried, and convicted was as fol *302 lows: “On the 4th day of December, A. D. 1905 .... did willfully and unlawfully open, carry on, and conduct, at his saloon and place of business at 319 Main street, in the city of Petaluma, Sonoma county, state of California, a certain banking game, played by means of a slot machine, for money, cheeks, and other representatives of value, to wit, cigars and tobacco.” While the complaint charges “for money, checks, etc,” there is no pretension that either money or cheeks were played. It does appear from the return and record in the case that the crime charged and intended to be charged was using the slot machine for “other representatives of value,” and that such representatives of value were cigars and tobacco. The petitioner was sentenced to pay a fine of $100, and to be imprisoned until such fine be paid, etc. The fine was not paid, and the petitioner was imprisoned. This answer to the return made by…