Opinion
October 23, 1942.
Frank S. Hogan, District Attorney ( Thomas J. McNamee of counsel), for the People.
Lourie Rosman ( Isidor B. Rosman of counsel), for defendant.
The complaint charges that the defendant did wilfully and unlawfully violate the provisions of section 973 of the Penal Law of the State of New York in that he did keep and maintain and knowingly allow and permit an apartment which he had in this county to be used for the purposes of gambling. The arresting officer testified that on September 2, 1942, he entered the apartment and found four men and ten women therein, twelve of whom were engaged in playing games of cards for money, and two others were seated waiting for a seat in one of the said games; and that the defendant upon being questioned by the officer stated "that it cost fifty cents for a seat in the games and that at the end of the games the winning team receives the sum of Two Dollars as a prize." The testimony further shows that the game being played was duplicate bridge. A witness for the defendant testified that part of the proceeds of these games is used to prepare young men for the aviation school.
The defendant called four recognized experts on the card game of duplicate bridge who testified that the game is one of skill and not of chance, and explained how the game is played.
Briefly stated the game is played as follows: Duplicate bridge is contract bridge played in a tournament that may consist of any number of tables. Two teams play against each other at each table, and at the end of each hand rotate to different tables as directed on the guide card until all the teams have played one of the hands at each table. One, two or three hands may be played at each table, depending upon the arrangement made. Assume that one hand will be played at each table. Assume further that five tables are playing; that would require ten teams. The cards for each table are shuffled and four hands dealt out at each table and placed in four openings in a card holder known as a duplicate board, marked North, East, South and West. Upon entering the tournament each team receives a guide card for the position it will be required to play at each table, that is, North and South or East and West.
At Table No. 1, team A may be required to play the North and South hand, and when rotated to another table, required to play the East and West hand, or the North and South hand at each table, or the East and West hand at each table. As each hand is played the cards are kept in front of each player so that the hands at each table are kept intact, and after the tricks are counted, the hands are placed back in the duplicate board, in the same position from which they were played, the object being to enable the different teams to play the exact same hands played by the other teams, before being rotated to another table. After the hand is played at each table, the winning team is credited with a plus score and the losing team with a corresponding minus score, that is, if the winning team makes a score, say of 500, it will receive a plus 500, while the losing team at that table will receive a minus 500. After the teams have played one of the hands at each of the five tables, the scores, plus or minus, made by each team at each table, are given what are called match points.
The match points are determined by comparing the plus score made by each team at each table with the plus score made by the other teams at the same table; that is to say, if three teams made a plus score at table one, the team making the highest score will receive two match points; the next highest receives one match point, and the lowest receives a zero. The match points for the minus scores are credited in the inverse order, that is to say, if three teams made a minus score at one table, the team receiving the highest minus score will receive a zero; the team with the next highest minus score will receive one match point, and the team with the lowest minus score will receive two match points.
The match points made by each team at each table are then counted and the team with the highest number of match points will be declared the winner. It will be noticed that match points can be made on plus scores as well as on minus scores and the number of match points received will depend on how well the different hands are bid and played at each table and how well they are defended, compared with the scores, plus or minus, made by the other teams playing the same hands. Under this system it is possible to be minus on every hand and still win the tournament. In other words, in duplicate bridge you do not compare the North and South players with the East and West players. Honors are not melded in duplicate bridge.
The defendant contends that the game of duplicate bridge played as described above is a game of skill and that the element of skill predominates over the element of chance; and, therefore, so the defendant claims, it does not constitute gambling if a money prize is awarded to the winner out of the fee each player is required to pay in order to engage in the game.
A careful study of the method of determining the winner of a tournament as described above satisfies me that the element of chance predominates over the element of skill. It is evident that if a team is lucky enough to sit at positions at each table where all or most of the high cards are, and another team unfortunate enough to sit at positions where all the low cards are, and in each case the team with the high cards always makes out of each hand all that can possibly be made, and the team with the low cards always plays against teams that make all that can be made out of a hand, that the team with the low cards, something over which it can have no control, must necessarily make a lower score in match points than the lucky team with the high cards. Under such circumstances the unlucky team may always score a zero, or at best a poor score. Thus it is obvious that the kind of cards you hold plays a great part in scoring match points, notwithstanding how skillful a player may be, and this is what makes the element of chance predominate over the element of skill. It is also obvious that after the cards are shuffled no skill can control the kind of cards you will receive, nor can skill stop you from getting a poor hand all the time.
I am of the opinion that as long as cards have to be shuffled in any game before being dealt out, it is the element of chance that becomes master of the situation. True, the skillful player may make a better score than a mediocre player, but with skillful players playing against each other it is the cards that count as to what score can be made.
Duplicate bridge, like any other card game is a game of chance. In discussing the element of chance, generally, in a lottery case ( People ex rel. Ellison v. Lavin, 179 N.Y. 164, at p. 170), Judge WERNER said "* * * games of cards do not cease to be games of chance because they call for the exercise of skill, * * *." Corpus Juris has this to say on the subject: "It is the character of the game, and not the skill or want of skill of the player, which determines whether the game is one of chance or skill. The test of the character of the game is, not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game. A game of chance does not cease to be such game because it calls for the exercise of skill." (27 Corpus Juris, p. 969.)
It seems that every card game is a game of chance and if played for money constitutes gambling under our statute. [Penal Law, art. 88.]
The defendant is found guilty.