Commercial gambling consists of either:
A. participating in the earnings of or operating a gambling place;
B. receiving, recording or forwarding bets or offers to bet;
C. possessing facilities with the intent to receive, record or forward bets or offers to bet;
D. for gain, becoming a custodian of anything of value, bet or offered to be bet;
E. conducting a lottery where both the consideration and the prize are money, or whoever with intent to conduct a lottery, possesses facilities to do so; or
F. setting up for use, for the purpose of gambling, or collecting the proceeds of, any gambling device.
Whoever commits commercial gambling is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-19-3, enacted by Laws 1963, ch. 303, § 19-3.
ANNOTATIONSCross references. — For gambling and gambling houses deemed public nuisances, see 30-19-8 NMSA 1978.
Constitutionality. — Subsection F of this section is not void for vagueness and uncertainty. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.
Standing to challenge validity. — Because defendants were charged with a violation of Subsection F of this section, they had no standing to challenge Subsection E and 30-19-2D NMSA 1978. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.
Applicability. — Former law, designed to prevent and prohibit gambling, was applicable to private individuals and fraternal organizations alike. State v. Las Cruces Elks Club, 1950-NMSC-013, 54 N.M. 137, 215 P.2d 821.
Offense distinguished from permitting of gambling. — Subsection F of this section and Section 30-19-4B NMSA 1978 do not relate to the same activity, since Subsection F of this section requires a positive act by an accused relating to commercial gambling, while Section 30-19-4B NMSA 1978 connotes mere passive acquiescence in permitting a gambling device to be set up for use for the purpose of gambling in a place under his control. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.
As permitting a gambling device to be set up and setting up a gambling device are not identical acts, an individual could not be held accountable under both sections for the same act. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.
Gambling distinguished from commercial gambling. — Gambling under Section 30-19-2A NMSA 1978 is distinguishable from commercial gambling under Subsection B of this section in that Section 30-19-2A NMSA 1978 requires only one act whereas this section requires more than one act to constitute a violation. State v. Owens, 1984-NMCA-105, 103 N.M. 121, 703 P.2d 898, cert. quashed, 103 N.M. 62, 702 P.2d 1007.
Elements of offense. — That game be played for money or anything of value was an essential element in violation of former gambling law, as merely playing or operating the gaming device was not actionable. State v. Valdez, 1947-NMSC-059, 51 N.M. 393, 185 P.2d 977.
Computer sweepstakes promotion was a lottery. — Where defendant owned and operated an internet cafe where customers could purchase time on the internet using computer terminals in the cafe; as a promotion, defendant gave customers free entries into a sweepstakes that awarded cash prizes determined by chance; defendant's computer system pre-determined the winning sweepstakes entries; customers could not obtain a refund of any internet time they did not use which consisted of 99.75% of internet time purchased; and defendant retained 8% of revenues from the sale of internet time and used the balance of the revenues to pay sweepstake prizes to customers, there was sufficient evidence to support the finding that defendant's sweepstakes promotion was a lottery. State v. Vento, 2012-NMCA-099, 286 P.3d 627, cert. granted, 2012-NMCERT-009.
Card game for value. — The game of solo, played with cards for something of value, was made an offense by the general language of Laws 1921, ch. 86, § 1 (former 40-22-1, 1953 Comp.). Grafe v. Delgado, 1924-NMSC-065, 30 N.M. 150, 228 P. 601.
Slot machines. — Slot machines, where the chances were unequal with the chances in favor of the machine, were covered by former gambling law as illegal. Territory v. Jones, 1908-NMSC-03014 N.M. 579, 99 P. 338 (1908).
Hand held "power bingo". — Hand held electronic devices known as "power bingo" are "gambling devices" within the meaning of this section and Section 30-19-2 NMSA 1978, and such units may not be used in New Mexico. Citation Bingo, Ltd. v. Otten, 1996-NMSC-003, 121 N.M. 205, 910 P.2d 281.
Free games as thing of value. — Where free games were awarded through chance to a player for his enjoyment in successfully operating a pinball machine, he received something of value within proscription of Laws 1921, ch. 86, § 1 (former 40-22-1, 1953 Comp.). Giomi v. Chase, 1942-NMSC-071, 47 N.M. 22, 132 P.2d 715.
Repayment in chewing gum. — Fact that slot machine always paid player value of his money in chewing gum did not exclude it from operation of anti-gambling law. State v. Apodaca, 1926-NMSC-053, 32 N.M. 80, 251 P. 389.
Supplying of lottery tickets. — One who supplied lottery tickets to others to be sold, but did not otherwise participate in the promotion of the lottery was nevertheless subject to the penalty. State v. Butler, 1938-NMSC-017, 42 N.M. 271, 76 P.2d 1149.
Essential allegations. — If allegation that operation of a game of chance "for money or anything of value" was omitted, the indictment or information failed to charge any offense and use of word "unlawfully" operating of a game of chance did not cure the defect. State v. Valdez, 1947-NMSC-059, 51 N.M. 393, 185 P.2d 977.
Failure to charge offense. — Where information was insufficient in failing to charge an offense under statute prohibiting operation of games of chance "for money or anything of value," did not state particulars of the offense and did not refer to the section of the statute creating the offense, information could not be amended after all the evidence was introduced at the trial. State v. Ardovino, 1951-NMSC-018, 55 N.M. 161, 228 P.2d 947, distinguished in State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.
Indictment sufficient. — An information charging accused, under former law, with "having in his possession lottery tickets for the purpose of vending the same contrary to the form of the statute," with bill of particulars describing the form of the tickets used, was sufficient. State v. Butler, 1938-NMSC-017, 42 N.M. 271, 76 P.2d 1149.
Admissions as part of res gestae. — Unless the corpus delicti of the offense charged has been otherwise established, a conviction cannot be sustained solely on extrajudicial confessions or admissions of an accused, but where evidence establishes the commission of the offense charged independently of the admissions by appellant, admissions at the time of arrest and at the place where the paraphernalia was found are a part of the res gestae and, for that reason, are admissible. State v. La Rue, 1960-NMSC-054, 67 N.M. 149, 353 P.2d 367 (decided under prior law).
Evidence of operating adequate. — While no gambling was observed on the premises, evidence of discovery of gambling paraphernalia in basement of cafe, in which defendant and others were also found, along with statements of defendant admitting that he was the operator, pointed unerringly to defendant's guilt. State v. La Rue, 1960-NMSC-054, 67 N.M. 149, 353 P.2d 367 (decided under prior law).
Admission of "other crimes" held prejudicial. — The admission of evidence of "other crimes, wrongs and misconduct" is prejudicial error where it laps over into a smear on gambling and general criminal activity, destroying the justification of relevance on a particular issue of intent. United States v. Biswell, 700 F.2d 1310 (10th Cir. 1983).
Instruction on operation approved. — Instruction that any person who manages, controls or takes or receives any money or thing of value from game for running the game or like purpose shall be deemed an operator of such game was substantially in the language of the applicable statute and correctly stated the law. Kilpatrick v. State, 1953-NMSC-117, 58 N.M. 88, 265 P.2d 978.
Jury instructions were improper. — Where defendant owned and operated an internet cafe where customers could purchase time on the internet using computer terminals in the cafe; as a promotion, defendant gave customers free entries into a sweepstakes that awarded cash prizes determined by chance; defendant's computer system pre-determined the winning sweepstakes entries; the jury was instructed on all alternative bases for a commercial gambling conviction, including the definitions of a bet, a lottery, and a gambling device; and the jury returned a general verdict that found defendant guilty of commercial gambling without identifying the underlying basis for the conviction among the alternatives in the commercial gambling statute, the district court erred when it used a general verdict form and instructed the jury on the charge of commercial gambling based upon the mutually exclusive theories of a lottery or a bet. State v. Vento, 2012-NMCA-099, 286 P.3d 627, cert. granted, 2012-NMCERT-009.
Questions for jury. — Where there was a substantial conflict as to whether or not the defendant operated a game of chance for money in his premises on the night in question, it was for the jury to determine the weight of the evidence, and also the credibility of the witnesses, and not the duty of the appellate court to do so. Kilpatrick v. State, 1953-NMSC-117, 58 N.M. 88, 265 P.2d 978.
Consideration. — Either a promise by the participant to pay if he does not win or payment by the participant subject to return of his money should chance make him the winner is sufficient as consideration; that a subsequent event may relieve from the promise or payment cannot obliterate the fact that at the time the participant enters the scheme consideration is rendered. 1955 Op. Att'y Gen. No. 55-6168.
Either a promise to pay or payment is, when tested by the law of contracts, sufficient as consideration. 1956 Op. Att'y Gen. No. 56-6347.
Law reviews. — For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 82 to 117.
Connection with place where gaming is carried on which will render one guilty as keeper thereof, 15 A.L.R. 1202.
Possession of gambling device as offense not requiring showing that device was used for gambling or kept for gambling purposes, 162 A.L.R. 1188.
Validity, construction, and application of statutes or ordinances involved in prosecutions for possession of bookmaking paraphernalia, 51 A.L.R.4th 796.
Validity, construction, and application of statute or ordinance prohibiting or regulating use of messenger services to place wagers in pari-mutuel pool, 78 A.L.R.4th 483.
Validity, construction, and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling, 82 A.L.R.4th 356.
38 C.J.S. Gaming § 99 et seq.; 54 C.J.S. Lotteries §§ 22, 23.