West Virginia

I. Definition of Gambling

“In the West Virginia Code any person who shall keep or exhibit a gaming table, commonly called A. B. C. or E. O. table, or faro bank, or keno table, or any slot machine, multiple coin console machine, multiple coin console slot machine or device in the nature of a slot machine, or any other gaming table or device of like kind, under any denomination, or which has no name, whether the game, table, bank, machine or device be played with cards, dice or otherwise, or shall be a partner, or concerned in interest, in keeping or exhibiting such table, bank, machine or gaming device of any character, shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not less than two nor more than twelve months and be fined not less than one hundred nor more than one thousand dollars. Any such table, faro bank, machine or gaming device, and all money staked or exhibited to allure persons to bet at such table, or upon such gaming device, may be seized by order of a court, or under the warrant of a justice [magistrate], and the money so seized shall be forfeited to the county and paid into the treasury of the county in which such seizure is made, and the table, faro bank, machine or gaming device shall be completely destroyed: Provided, however, That the provisions of this section shall not extend to coin-operated no payout machines with free play feature or to automatic weighing, measuring, musical and vending machines which are so constructed as to give a certain uniform and fair return in value or services for each coin deposited therein and in which there is no element of chance.” W. Va. Code Ann. § 61-10-1 (2006).

The West Virginia court has said it is clearly the intention of the legislature to forbid certain kinds of gaming, among which faro banks and keno tables, and all are other games like them. It makes no difference whether these games are played with or without a table, on a table or under it; or rather it may be affirmed that anything on or by means of which such games are played is a table within the meaning of this statute. The court “must look to the game itself and not the name by which it is called, or the instruments with which, nor the thing in or on which, it is played, to determine whether or not the game is unlawful.” State v. Gaughan, 48 S.E. 210, 212 (W. Va. 1904); see also Morley v. Godfrey, 46 S.E. 185 (W.Va. 1903).

The West Virginia statute “is intended to prevent gaming from becoming an annoyance or a nuisance to the public, and not specially to suppress gambling as a vice per se.” State v. Brast, 7 S.E. 11 (W. Va. 1888). A West Virginia statute provides that the laws concerning gaming are to be construed as remedial. W. Va. Code Ann. § 9 61-10-14.

1. Material Element

If the dominating element of a game is that of knowledge or skill, instead of pure chance, a lottery does not exist. 45 Op. Att’y Gen. 605 (1954). “No games of unequal chances can be played anywhere lawfully.” Gaughan, 48 S.E. at 212.

Scienter is not essential element of offense. This means that the gaming statute does not require that the act prohibited should be knowingly done. State v. Chesapeake & Potomac Tel. Co., 4 S.E.2d 257 (W. Va. 1939). But lack of knowledge is a mitigating circumstance. The lack of knowledge, it is to be assumed, would be considered by the trial court in mitigation of punishment, but public policy would not permit the lack of diligence or the absence of attentiveness to constitute a substantial defense. Id.

2. “Any” chance

Games prohibited by statute and unlawful gaming, are divided into two classes. The first class belongs to games where the chances to win are equal. The second class contains games where the chances to win are unequal, given that all other things are equal, and where the inequality of chance benefits the keeper or exhibitor of the game. Gaughan, 48 S.E. at 212. “No game of unequal chances can be played anywhere lawfully.” Id. However, if the dominating element of a game is that of knowledge or skill, instead of pure chance, a lottery does not exist. 45 Op. Att’y Gen. 605 (1954).

”The essential elements of a lottery are consideration, prize and chance, and any scheme or device, by which a person, for a consideration, is permitted to receive a prize for nothing, as may be determined predominantly by chance, is a lottery.” State v. Wassick, 191 S.E.2d 283, 284 (W. Va. 1972).

3. Exemptions

Exemption provision in the code (W. Va. Code Ann. § 61-10-1 (2006)) stating “which are so constructed as to give a certain uniform and fair return in value or service for each coin deposited therein and in which there is no element of chance” applies only to “automatic weighing, measuring, musical, and vending machines,” and not to “coin operated no payout machines with free play feature.” Buzzo v. City of Fairmont, 380 S.E.2d 439, 441 (W. Va. 1989).

Authorized operation exempt from other prohibitions are video lottery systems because the system was an “authorized operation” of the Lottery Commission within the meaning of the State Lottery Act and thus exempt from other statutory or regulatory prohibitions. Op. Att’y Gen., Feb. 14, 1991, No. 12.

II. Definition of bookmaking

West Virginia has no statutory authority, attorney general opinions, or case law governing bookmaking.

III. Specific gaming Device definitions

Gambling devices not per se illegal- Gambling devices under this section are not per se illegal. Buzzo, 380 S.E.2d at 439.

Mere possession of a gaming device is not per se illegal. As such, it is not illegal to possess them for legitimate purposes, and it can be said that the machines and devices are legal in West Virginia unless they are used for an illegal purpose. Op. Att’y Gen., Sept. 14, 1983, No. 20.

Devices of “like kind”

“The mere fact that the device could possibly be used or adapted to gambling does not make it of like kind.” State v. Calandros, 86 S.E.2d 242, 247 (W. Va. 1955) (internal quotations omitted).

If the gambling device in question is one specifically named in this section, it is prima facie illegal under the statute, and the burden of proof then shifts to the possessors who must prove by a preponderance of the evidence that the machines were being kept or exhibited innocently, not for gambling purposes. If the statute does not specifically name a gambling device, the state has the burden of showing that the machine or device used is unlawful. Buzzo, 380 S.E.2d at 441-42.

Devices listed in W. Va. Code Ann. § 61-10-1 are prima facie contraband when seized on a warrant alleging use for gaming and may be destroyed without the prior conviction of their owner or owners for using them for gaming. Before a gambling device may be destroyed under W. Va. Code Ann. § 61-10-1, notice must be given to those in whose possession the device was found, and hearing given anyone who appears and claims ownership. A person found in possession of a gambling device must prove by a preponderance of the evidence that the device was being kept or exhibited innocently, not for gambling purposes. If no one appears to assure that a device’s use is innocent, or where a person does come forward but fails to carry the burden of proof, the device may be destroyed. Club Ass’n of W. Va., Inc. v. Wise, 156 F. Supp. 2d 599, 604 (D. W. Va. 2001). The authorities of West Virginia hold that the seizure of gambling property does not violate the constitutional provision against depriving one of his property without due process of law. Cambria v. Bachmann, 118 S.E. 336 (W. Va. 1923); but see State v. 25 Slot Machines 256 S.E.2d. 595, 597 (W. Va. 1979)(holding that a gaming device will not be destroyed where the owner of the device is acquitted).

IV. Bucket shop laws

West Virginia has no statutory authority, attorney general opinions, or case law governing bucket shops.

V. Prohibition of games of skill

If the dominating element of a game is that of knowledge or skill, instead of pure chance, a lottery does not exist. 45 Op. Att’y Gen. 605 (1954).

1. Poker/card Games

In West Virginia, a room in which “poker” is routinely played and to which all persons who desire to play or to watch the game are admitted without invitation and which they are at liberty to enter, is a place of public resort within the meaning of the statute making it a misdemeanor to play cards in any public place, in spite of the inability of persons to witness or observe the game from any public road, street, railroad, store, or shop. A place kept for the convenience of gamblers, who alone know of its existence is nevertheless a violation of the law. State v. Baker, 71 S.E. 186 (W. Va. 1911).

2. Sports betting

Sports betting does not include the element of chance as a predominant factor in determining who receives a prize and is not a lottery; therefore the state’s constitutional prohibition against lotteries does not apply, and sports betting may be legalized by appropriate legislation. Op. Att’y Gen., Jan. 8, 1991, No. 8.

3. Poker machines

“It is undisputed that the poker machines and devices of like kind are subject to forfeiture proceedings and will be forfeited and destroyed when they are actually used in gaming activity.” Buzzo v. City of Fairmount, 380 S.E.2d 439, 441 (W. Va. 1989).

4. Electronic Video poker Machines

Electronic video poker machines fall within the statutory exemption where the evidence indicates that the machines are “coin operated nonpayout machines with a free play feature.” Id. at 439.

The use of a video poker machine for gambling purposes is not prohibited by statute that regulates lotteries and raffles. U.S. v. Dobkin, 423 S.E.2d 612, 613 (W. Va. 1992). But when a video poker machine is provided for gambling, rather than amusement purposes, betting on the outcome of such a machine violates a statute in West Virginia. Id.

5. Gray Machines

The term “gray machines” describes any machine capable of providing play for games of chance. Possession of such non-state owned machines is legal, so long as there is no payout from their play. Club Ass’n of W. Va., Inc. v. Wise, 156 F. Supp. 2d 599, 606 (D. W. Va. 2001)

6. Pin Ball machines

Multiple-coin pinball machines with features showing the recording of canceled “free plays,” and where chance is predominant over skill in the play of the machine such machines will so likely be used for “payoffs” that they will be considered illegal per se. The licensing of a pinball machine is merely a revenue measure and does not prohibit the prosecution for a violation of the gaming laws or lottery statute. State v. Wassick, 191 S.E.2d 283, 284 (1972).

In the use of a multiple-coin pinball machine, chance is predominant over skill in the use of the machine, and the use of nickels to play the machine constitutes consideration. Id. A pinball machine was held to be a gambling device per se where scores were registered on the machine, and new games were obtained for a certain number of points. Id.

7. Punch board

A punchboard that, for a consideration, entitles the holder of a lucky number to a prize which results predominately from chance is a lottery. State

8. Tokens in bottle caps

The placing of a token, redeemable in money, in a soft drink bottle cap on soft drink bottles offered for sale to the public, constitutes a lottery under the provisions of this section. 49 Op. Att’y Gen. 58 (1961).

9. Mystery Melody Program

Mystery melody program sponsored by a brewery is not a violation of the non-intoxicating beer law or the lottery statute. 45 Op. Att’y Gen. 166 (1952).

10. Craps table

In Dawson, the State’s evidence was held sufficient enough to establish that a craps table was a game of unequal chances, and that the defendant was the beneficiary of the inequality. State v. Dawson, 186 S.E. 175 (W. Va. 1936).

11. “Joker” machine

If a “joker” machine provides unequal chances, the advantage being in favor of the keeper, it is a gambling device. 45 Op. Att’y Gen. 566 (1954).

VI. Express Exemptions

Under West Virginia’s lottery statute the prize must be money or other thing of value. There is a split of authority as to whether “free plays” on a pinball machine are things of value constituting a prize. However, the weight of authority is that a “free play” on a pinball machine is a thing of value and constitutes a prize that makes the machine a lottery per se. “Free plays” are not in themselves money, although they often are converted into money, and the prevailing view is that they are things of value. Id.

The “free plays” awarded by a multiple coin pinball machine are a prize because they have some value to the player either in playing additional games without charge or receiving a “payoff,” and where “free plays” are won predominantly by chance rather than skill for a consideration by virtue of the coins placed in the machine, it is a lottery per se. Id.

Horse Racing

Racing is legal in West Virginia and is under the supervision of a racing commission. All racing must be licensed and only the pari-mutuel system of wagering is permitted. The West Virginia Racing Commission is a state agency with the sole supervision and control of horse racing in West Virginia. According to W. Va. Code Ann. § 19-23-6 (2006) the racing commission has full jurisdiction over all horse race meetings, all dog race meetings and all persons involved in the conducting of horse or dog race meetings and it has plenary power and authority:By reasonable rules and regulations, to authorize stewards, starters and other racing officials to impose reasonable fines or other sanctions upon any person connected with or involved in any horse or dog racing or any horse or dog race meeting; and to authorize stewards to rule off the grounds of any horse or dog racetrack any tout, bookmaker or other undesirable individual determined inimical to the best interests of horse and dog racing or the pari-mutuel system of wagering in connection therewith; W. Va. Code Ann. § 19-23-6 (2006)

Selling tickets or chances in a poolroom or conducting such a room is prohibited by the code. W. Va. Code Ann. § 61-10-10.

In a prosecution for transmitting information about the result of a horserace to a poolroom where wagering takes place, lack of knowledge will be considered as a mitigating factor by the court. But public policy does not permit the lack of diligence or the absence of attentiveness to constitute a substantial defense, and for that reason the absence of an allegation of knowledge was no ground for sustaining a demurrer to the indictment. State v. Chesapeake & Potomac Tel. Co., 4 S.E.2d 257, 259 (W. Va. 1939).

Bribery of participants in a horserace is a criminal offense under the West Virginia Code. W. Va. Code Ann. § 61-10-22.

VIII. State of Anne/ Recovery of debts

Under West Virginia law, it if any person loses ten dollars or more – or property of that value – within a twenty-four hour period, the loser may recover it back from the winner by an action in court, according to the amount of value, brought within three months after payment or delivery. State v. Edwards, 41 S.E. 429 (W. Va. 1902).

Authorities hold that the seizure of gambling property does not violate the constitutional provision against depriving one of his property without due process of law. Cambria v. Bachmann, 118 S.E. 336 (W. Va. 1923).

Gaming Contracts

The West Virginia Code contains provisions, protecting persons holding or claiming under such contracts in good faith, for value, and without notice of the illegality of the consideration. W. Va. Code Ann. § 55-9-1. The West Virginia statute was modified to protect innocent purchasers for value. Id.

IX. Gaming Crimes

1. Cheating at gaming; penalty If any person playing at any game cheats, or by fraudulent means win or acquire for himself money or other valuable thing, he will be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and fined not less than five times the value of the money or thing won or acquired. W. Va. Code Ann. § 61-10-9(2006).

2. Aiding as Doorkeeper.

In West Virginia, any person who acts as doorkeeper, watch, etc., where prohibited games, tables, etc., are exhibited, or exhibits such games, or by any means prevents, hinders or delays the arrest of the keeper or exhibitor or prevents the seizure of such devices shall be confined in jail for not more than one year and fined not exceeding one thousand dollars. W. Va. Code Ann. § 61-10-3 n.2

It is illegal under a West Virginia statute to permit a video poker machine to be used for gambling purposes at a hotel, tavern or other location. United States v. Dobkin, 423 S.E.2d 612, 613 (W. Va. 1992). If the keeper of a hotel or tavern let or hire to another person any place, which has been at any time held with the house kept by him, with intent that unlawful gaming be permitted, he shall suffer the same punishment and incur the same forfeiture as if such unlawful gaming were permitted at his own principal house; and in a prosecution therefore, if the gaming be proved, it shall be presumed that such outhouse or other place was let or hired with intent aforesaid, unless the presumption be repelled in the manner provided for in the preceding section [§ 61-10-7]. W. Va. Code Ann. § 61-10-8

When a video poker machine is provided for gambling, rather than amusement purposes, betting on the outcome of such a machine violates a statute in West Virginia. Dobkin, 423 S.E.2d at 613. It is illegal under a West Virginia statute to permit a video poker machine to be used for gambling purposes at a hotel, tavern or other location as described in the statute. Id.

It is gambling prohibited by statute to use a video poker machine that does not disburse money directly but is equipped with a free play feature when the player is reimbursed in money or any other thing of value except free plays for accumulated free plays. Id.

In order to avoid a violation of the property owner’s due process rights, notice of distribution and a hearing must be given to the person(s) who claim ownership. If the gambling device in question is one specifically named in W. Va. Code Ann. § 61-10-1 (1970), it is prima facie illegal under the statute. The burden of proof then shifts to the possessors who must prove by a preponderance of the evidence that the slot machines were being kept or exhibited innocently, not for gambling purposes. If the gambling device is not one specifically named in the statute, then the burden of proof is on the state to show that this particular machine or device is one condemned by the statute. Buzzo v. City of Fairmount, 380 S.E.2d 439, (1989).

Devices listed in W. Va. Code Ann. § 61-10-1 are prima facie contraband when seized on a warrant alleging use for gaming and may be destroyed without the prior conviction of their owner or owners for using them for gaming. Before a gambling device may be destroyed under W. Va. Code Ann. § 61-10-1 notice must be given to those in whose possession the device was found, and hearing given anyone who appears and claims ownership.

3. Misdemeanor versus felony

In West Virginia, it is a misdemeanor for any person to “set up or promote, or be connected with or interested in the management or operation of any poolroom,” which is “held and construed to mean any room where any pool ticket, chance voucher or certificate is sold entitling or purporting to entitle the holder or promisee thereof, or any other person, to money or other thing of value, contingent upon the result of any horse race, prizefight, game of chance, game of skill or science, or other sport or contest.” W. Va. Code Ann. § 61-10-10 (2006)

If any person knowingly permit a gaming table, bank or device, such as is mentioned in W. Va. Code Ann. § 61-10-1], to be kept or exhibited on any premises in his occupation, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year, and be fined not less than one hundred nor more than one thousand dollars. W. Va. Code Ann. § 61-10-2 (2006)