The opinion
SEAWELL, J., Dissenting.
I dissent. The law of this state shuts the door against those who voluntarily stake their money on gambling with cards and games commonly known as games of chance, whatever be the *153 form or device used by the parties who mutually engage in gambling transactions. Courts will not act as referee as to the fairness of the methods of gaming or attempt to balance the bona fides of such unlawful ventures between parties who voluntarily stake their money or property on the hazard of chance, or as to wagers made by persons as to which one is the most skilful in the movements of the hands or other kinds of deception, whether the game is played with cards or by the manipulation of mechanical devices.
To hold that a loser gambling at games or wagering on the results of chance would be privileged to return to the gambling rooms where he had lost his stakes or recapture his losses at any place where he might meet the person he had gamed with, and, by force of arms, recoup his losses, would throw wide open the door to those criminally inclined to engage in robbery in its most dangerous form in the guise of recapturing stakes lost at some form of gambling or chance, without incurring the penalty prescribed for the offense of robbery. Such a defense could be made in every borderline case where the character of the transaction might be less marked than in the instant eases which bears some resemblance to a large number of nationwide transactions not infrequently referred to as gambling ventures. The recognition by law of the policy contended for would have the direct effect of menacing life by encouraging violence and breaches of the peace. It would offer a tempting subterfuge behind which gunmen would find convenient if not ample protection. The rule would open a new field for the operations of the criminal minded. We see no legal or moral strength on the side of appellant. He voluntarily parted with the possession of his money by matching his cunning with that of another. He lost and possession passed to the winner. He had no title which the law would protect. The law has no interest in the question of title as between the parties, but it does have an interest in the preservation of the life and limb of its citizens and in the maintenance of peace and order. That is its first duty. This being so, why, particularly where the actor, by his own folly, is responsible for the situation in which he has placed himself, should the law encourage or lend its approval to the commission of breaches of the peace ? If the law will not aid him in the recovery of that which he has voluntarily parted with, how can it be said that he has *154 a legal right to rise above it and assume the role of an outlaw in recovering possession by force of arms ?
The cases in which a purse is snatched from the hands of a bystander and the victim makes a recovery of his specific property, or where a thief steals an animal and recovery is made by the owner from the pasture or possession of the thief, are not comparable with the situation presented by the instant ease. The distinction as to the means of possession is too apparent to require more than bare mention. In the first instance possession is gained by theft or by the exercise of fear or force. In the examples cited, the owner did not voluntarily part with possession; in the instant case, he did. This marks an important distinction in two widely different situations. Under the doctrine contended for, the loser at a game of chance, without regard to time or place, could continue his acts of prey under the sanctity of law and could appropriate unidentified moneys in which he has no title of sufficient stability to support his claim in an action at law until the last penny, with or without interest, has been made good.
There is no merit in the claim that this species of violence would have a tendency to suppress gambling. The laws which are designed to prohibit that evil, if properly enforced, are sufficient for that purpose. The nostrum administered to improve an unwholesome condition would have a more deleterious effect on the body politic than the evil which is remedial upon the enforcement of laws already written into our statutes.
The holding that stakes lost at the gambling table may at any time or place thereafter be retaken at the point of arms, thereby stripping an important section of the Penal Code of its deterrent force in such cases, portends the danger that such pronouncement will" tend to increase lawlessness by holding out hope of immunity to persons criminally disposed, and perchance act as an urge to others who, finding themselves driven to the brink of tragic depths by the disappointing turn of fortune, will be tempted to recoup such losses by embracing the desperate hazard of forcibly taking property from the person of another. If the loser in his attempt to take from the person whom be believes has in his possession money allegedly won from him—moneys, it may be, which are held in trust for another—and the latter resists the at *155 tempted search and seizure of his person which has all the appearances of an attempted robbery, and a homicide is thereby committed by one or the other—by no means a remote possibility—an interesting and vexatious question would arise as to the legal rights of either under the law of excusable or justifiable homicide.
In the confused situation in which the defense of person and property would be thrown by extending the rule as approved by the main opinion, it may be pertinent to ask what should be the measure or standard as to the quantum of force which either party may be entitled to exert in the struggle, first, with respect to the enforcement of the demands made by the known or disguised assailant, and, secondly, as to the resistance of an act which has every appearance of an ordinary robbery.
A voluntary participant in a game of chance has no title in or right of possession of personal property which the law recognizes after it has passed from the possession of one wagerer into the possession of the other. A creditor in legitimate business transactions is not given the privileges and immunities 'which the main opinion would bestow on persons who seek to recoup gambling losses.
I perceive no real reason or moral requirement for the adoption of a rule which will have the effect of throwing confusion into well-settled rights of person and property. In cases where it appears that there are mitigating circumstances which weigh in a defendant’s favor there is scarcely a doubt, under our humanized administration of the criminal lawr, but that the defendant would be released from a prison sentence by an order admitting him to probation, at the termination of which, if his conduct merits it, the entire proceeding is expunged from the court’s records. In addition, he has a right to apply to the executive head of state government for executive clemency, which is uniformly granted in proper cases.
I am of the view that the rule contended for by appellant w?ould prove to be inimical to the enforcement of law and the maintenance of order, and the doctrine which the main opinion approves would tend to enlarge the field of crime and incite disorder rather than restrict it.
Langdon, J., concurred.