¶1The opinion of the court was delivered by
¶2The defendant is appellant from five different convictions and sentences to pay fines for alleged violations of Oity Ordinance 4034, Council Series, which denounces, as an offense, ■“ gambling with dice, cards, or other means,” or “keeping a banking game, or gambling house.”
¶3The charge made in each of the several cases is as follows, viz.:
“That Thomas Quaid did then and there violate Ordinance 4034, •O. S., by keeping a gambling game known as pin-pool, upon which money is bet; said gambling game being played in the above-mentioned house,” etc.
¶4The contention and answer of the defendant are that “ pin-pool is not a gambling game, and therefore (it) is not in the contemplation of (said) ordinance; and, in the alternative, it is alleged that, if said ordinance was intended to embrace the game of pin-pool (it) is illegal, null and void; that the business of keeping a “pool table is recognized as legal, by the State and city, which impose licenses •on same; and that these licenses were paid by defendant.”
¶5The proof shows that the game of pin-pool 'is played on a table, •on which five pins are set in a small square, one being in the centre of the square, and each pin being numbered from one to five, respectively. The game is played by a number of persons, each one of whom uses a cue and balls, whereby the pins are knocked down, •and the player is credited on his score with the respective numbers *1077of the pins thus knocked down. At the beginning of the game the-gamekeeper puts a number of marbles in a leathern bottle, on each one of which is a number printed, and, after thoroughly shaking it-up, he casts one to each of the players. These balls indicate the order of preference among the players, and each one is entitled to-credit on his score for the number marked on his ball. When, in the progress of the game, one of the players makes a total score of the precise number, fixed as the winning number, he is entitled to the pool, and it consists of the total amount the players contributed thereto.
¶6The proprietor of the establishment furnishes the entire paraphernalia, and charges so much per game, according to the number of' players, and, as soon as the game has been completed, he deducts, same from the pool and the residue goes to the winner.
¶7The players very frequently venture bets on the result of the game, but that is entirely optional with them. In such bets the proprietor has no interest and assumes no risk whatever. It matters not, so far as he is concerned, what the amount or number of the bets may be, the proprietor gets no more nor receives any less a consideration for the game.
¶8The theory of the game is that the proprietor simply charges for-the use of the table and appliances, and it is of no consequence to him whether one or all the players pay for it, or whether the players, contribute ratably in money in advance, or agree ,that the fee be paid out of the pool by the winner. All of these things are purely conventional, and as agreed upon by the parties at the commencement of the game.
¶9This game is not in any correct sense a gambling game, such as is. denounced in the Constitution'and laws. If the argument and reasoning on the subject needed reinforcement, the necessary aid would be supplied by the acts of the state and city, in demanding of and receiving from the defendant licenses for the prosecution of this business.
¶10The “keeping of a gambling game” in the sense of the law, is. such as “ implies loss or gain between parties” who are participating in the game. But the defendant, as proprietor, is not a participant in the losses or gains incident to the result of the game.
¶11That the players did engage occasionally in betting on the game,, did not constitute it a gambling game. On the contrary, it is ex-*1078■elusively a game of skill, and does not contain any element of ■chance.
¶12The ordinance in question does not rightfully apply to or legally ■embrace the game of pin-pool, and the convictions and sentences of The defendant were illegal.
¶13It is, therefore, ordered and decreed that the judgments and ■sentences appealed from be annulled and set aside; and it is further ordered and decreed that the various proceedings and prosecutions against the defendant be abated and discontinued, and that he be relieved from the payment of cost.