Appeal from the Circuit Court of Peoria County; the Hon.
Donald C. Courson, Judge, presiding.
PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendants, James H. Mitchell and David R. Mitchell, were convicted of gambling by the circuit court of Peoria County following a jury trial and fined $50 each and ordered to make restitution in the amount of $375 each to the Illinois Department of Law Enforcement.
The charge grew out of an incident which occurred on March 16, 1980, when undercover agent William Pennell of the Illinois Division of Criminal Investigation took part in two poker games in the basement of a residence at 1309 Elmhurst, Peoria. According to the testimony of Pennell, he was invited to participate in the game by an informer, Michael Paulson, who accompanied Pennell to the residence which was owned by defendant David Mitchell. Pennell and eight other individuals, including both defendants, paid $500 each to get into a game of "Hold `em" poker. The money was collected by defendant David Mitchell and laid on the piano. Poker chips representing $500 in value per player were distributed to the nine participants.
David Mitchell explained that the $4,500 pot would be distributed to the first and second-place winners in the amounts of $3,500 and $1,000, respectively. The game was played with two cards in the hand of each participant and three, four and five cards dealt face up to the center of the table progressively as the players announced their decision to bet, call or fold. David Mitchell was the first player to lose all of his chips; Pennell was the second.
Pennell and David Mitchell then discussed starting up a second game with $250 stakes. Pennell left to get more money, returned, and the second game was started up with Pennell, David Mitchell and two others who had also lost at the first table. Pennell and David Mitchell again each lost all of their chips, and Pennell left the residence before the winners had been determined at either table. At the completion of all testimony and arguments of counsel, the court instructed the jury on the applicable law.
Over the State's objection, the jury was instructed that, in addition to proving that the defendants played a game of chance or skill for money or other thing of value (Ill. Rev. Stat. 1979, ch. 38, par. 28-1(a)(1)), the State had the burden of proving that the defendants were not participating for the offer of prizes in any bona fide contest for the determination of skill (Ill. Rev. Stat. 1979, ch. 38, par. 28-1(b)(2)). After a half hour of deliberations, the jury returned verdicts of guilty against both defendants. The court, after considering the wide range of sentences available under section 5-5-3 of the Unified Code of Corrections from imprisonment through restitution (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3(b)), imposed the fines and orders of restitution as aforesaid. This appeal followed.
The sole issue presented for our consideration is whether the State proved defendants guilty beyond a reasonable doubt of having committed the offense of gambling as charged. (Ill. Rev. Stat. 1979, ch. 38, par. 28-1(a)(1).) Defendants' primary contention is that the State failed to prove beyond a reasonable doubt that the game did not qualify as a bona fide contest for the determination of skill (Ill. Rev. Stat. 1979, ch. 38, par. 28-1(b)(2)), an exception to the games constituting offenses in subsection (a)(1) of the gambling statute. Pennell testified that he was less skillful than certain other players who participated in the games. His performance, as testified to by himself, supported his conclusion in this regard.
The trial court ruled that the issue of whether "Hold `em" poker qualified for the exception or not was a question of fact in this case. Whether or not the issue is a question of fact is not before us. (See Annot., 135 A.L.R. 104, 130-33 (1941).) Defendants contend merely that the jury's conclusion cannot be supported by the evidence of record.
Certainly the State has the burden of proving each element of the offense beyond a reasonable doubt. In the present case, the jury found that the State had borne its burden. On appeal we will not reverse defendants' convictions unless we find the evidence so unsatisfactory as to create a reasonable doubt of guilt. (People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671; accord, People v. Diesel (1970), 128 Ill. App.2d 388, 262 N.E.2d 15, 18 (same standard applied in bench trial).) Circumstantial evidence has the same validity and weight in gambling cases as in other offenses. Ill. Rev. Stat. 1979, ch. 38, par. 28-1(d).
While the defendants have failed to cite any authority for the precise issue they present, the State refers us to People v. Diesel which, they suggest, provides authority by implication for affirming defendants' convictions. In Diesel, as here, defendant asserted that the State had not borne its burden of proving him guilty of gambling (Ill. Rev. Stat. 1967, ch. 38, par. 28-1(a)(1)) beyond a reasonable doubt. Diesel was seen by police officers seated at a table with others, cards in hand and money on the table. Without discussing the rules of the game in progress or the exception in subparagraph (b)(2) of the gambling act, the court upheld Diesel's conviction on the reasonable doubt challenge.
In our opinion, the poker game played under the circumstances of the instant case is precisely the type of "game of chance or skill" which falls squarely within the plain meaning of the activity proscribed under subsection (a)(1). Although there was some testimony tending to indicate that the poker games involved some degree of skill, we do not find the jury's implicit conclusion that they were not "bona fide contests for the determination of skill" so improbable as to warrant a reversal. Both direct and circumstantial evidence was introduced to support the conclusion that the games, in fact, required a combination of skill and chance, and that they were definitely not the type of "bona fide contests" excepted from subsection (a)(1). See People v. Diesel (1970), 128 Ill. App.2d 388, 394-95, 262 N.E.2d 15, 18-19.
Defendants next contend, again without citation to any authority whatever, that their convictions may not stand because the evidence showed that both defendants "through lack of skill" failed to reach the point where they qualified to win any money. The argument is specious, at best.
The fact that poker chips were used in lieu of cash at the table and that the rules allowed for only two cash winners does not diminish the fact that each participant played "for money or other thing of value." Plainly, "things of value" (poker chips representing various dollar amounts by their colors) were what was being bet and money was all that could be won. (There was no evidence tending to establish that the defendants merely donated $500 each to the pot for the entertainment of their friends with no hope of possibly winning money back.) Were we to adopt the defendants' reasoning, we would effectively repeal the gambling statute, a legislative function which the judiciary is not empowered to perform.
Finally, although Pennell could not state definitely that anyone had, in fact, left the games with money, sufficient evidence was presented at trial to permit the jury to find that the games were played "for money or other thing of value" as opposed to, for instance, ...