¶1dissenting:
¶2With utmost deference to the views of my colleagues, I dissent from the conclusion reached by them that the evidence in this case is insufficient to support the verdiot.
¶3*729This record shows clearly that the defendant owned the device and placed it in the Clubroom with the idea of deriving profit from its exhibition and use. True, the device did not pay money directly to the player. Nevertheless, it was a typical slot machine with the chances unequal, in favor of the exhibitor and owner. The defendant was to receive twenty per cent of the gross receipts; thus he comes within that part of Code, 61-10-1, as being a partner in the exhibition of the device and concerned in interest in keeping and exhibiting the same.
¶4The statute under which the defendant was prosecuted has been a part of the Code for a number of years. See Chapter 27, Acts of the Legislature, 1881. The method of operation was such that the chances for the player to win were unequal. The record clearly establishes such un-equality. A game of that character cannot be lawfully played at any place. State v. Gaughan, 55 W. Va. 692, 48 S. E. 210.
¶5The statute existed before the separation of this State from the Commonwealth of Virginia. In the case of The Commonwealth v. Wyatt, 6 Rand. 694, the Court had under consideration a similar statute. A conviction under the statute was there upheld where the defendant was charged with using an unlawful gaming table for playing a game called “hap-hazard” or “blind-hazard”.
¶6In the case of State v. Dawson, 117 W. Va. 125, 184 S. E. 253, the indictment was held bad because of disjunctive allegations. But the statute is treated therein as a valid enactment.
¶7In a subsequent opinion by this Court, State v. Dawson, 117 W. Va. 501, 186 S. E. 175, a judgment of conviction was upheld. The Court, in the last cited case, uses the following language: “Thus the primary question before us on the present writ of error is whether the state’s evidence was sufficient to establish that the ‘craps’ table was a table or game of. unequal chances, all other things being equal, and that such unequal chances were in favor of the keeper, or exhibitor of the game, as required, in such cases, to sustain a conviction.”
¶8*730A person who keeps or exhibits one of the classes of gaming tables such as defined in Code, 61-10-1, is a keeper or exhibitor thereof, has an interest or is concerned in keeping them, within the terms of the statute. State v. Henaghan, 73 W. Va. 706, 81 S. E. 539.
¶9The above cited cases justify the conclusion that the statute under which this prosecution was had is a valid enactment, and the acts proved against the defendant came clearly within its terms and perview.
¶10The Court, in its opinion, says that the evidence is not sufficient to establish the guilt of the defendant beyond all reasonable doubt. As above noted; the defendant certainly placed the device in the Clubroom, and was concerned in, or had an interest in its exhibition and use, to the extent of twenty per cent of the gross intake. This establishes his guilt beyond all reasonable doubt, and the verdict should not be disturbed by this Court. State v. Taylor, 130 W. Va. 74, 42 S. E. 2d 549.
¶11The rule for determining whether a verdict is upheld by the evidence is tersely stated in Pt. 1, syllabus, State v. Bowles, 117 W. Va. 217, 185 S. E. 205. “In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.” See State v. Lewis, 133 W. Va. 584, 57 S. E. 2d 513.
¶12A similar principle was stated in the case of State v. Price, 94 W. Va. 644, 119 S. E. 874, where part of the syllabus reads as follows: “A verdict of guilty in a criminal case based upon conflicting oral evidence will not be disturbed unless the evidence so clearly preponderates in favor of defendant’s innocence as to clearly indicate passion, prejudice or other improper motive on the part of the jury; …
¶13*731In the instant case, there is no contravening evidence which shows that the defendant had an interest in the exhibition and operation of the gaming device found by the officers when they searched the V. F. W. Clubroom at Ripley.
¶14Bearing in mind the well established and time-tried principles above stated, I would affirm the judgment of the Circuit Court of Jackson County.