O.C.G.A. § 16-12-21 (2019)

Annotations

Cross references. Void status of gambling contracts, § 13-8-3. Operation of bona fide coin operated

amusement machine businesses, § 50-27-70 et seq. Parent’s right of action against person playing and betting at game of chance with minor child for money or other value, § 51-1-18. Law reviews. For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B.J. 124 (1970). For article, “Misdemeanor Sentencing in Georgia,” see 7 Ga. St. B.J. 8 (2001).

OFFENSES/HEALTH & MORALS

JUDICIAL DECISIONS Former Penal Code 1895, § 401 (see now O.C.G.A. § 16-12-21) apparently was designed to prevent gambling of any nature. Fleming v. State, 125 Ga. 17, 53 S.E. 579, 1906 Ga. LEXIS 16 (1906). Gambling obligations unenforceable. - Gambling transactions contravene public policy of Georgia and constitute obligations unenforceable in its courts. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976). One may be acquitted of gambling but convicted of operating a gambling house. - Gambling is one thing and operating a gambling house is a kindred but entirely different thing; and different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91, 1975 Ga. App. LEXIS 2350 (1975). Game may be one of chance or skill for stakes. Fleming v. State, 125 Ga. 17, 53 S.E. 579, 1906 Ga. LEXIS 16 (1906). It is not necessary that money be the stake. Alexander v. City of Atlanta, 13 Ga. App. 354, 79 S.E. 177, 1913 Ga. App. LEXIS 152 (1913). Evidence sufficient for conviction. - Evidence of gambling devices and expert testimony on the purpose of dogfighting was sufficient to support a conviction. Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104, 1984 Ga. LEXIS 955 (1984). Evidence that defendant was 400 miles from defendant’s home shortly after dawn in a remote area of the state where dogfighting and gambling were taking place, that defendant was apprehended directly next to a pit where dogfighting was underway, and that the defendant was arrested with $899 on defendant’s person was suf-

ficient for a rational trier of fact to conclude that defendant was guilty of allowing dogfighting to take place and gambling. Barton v. State, 253 Ga. 478, 322 S.E.2d 54, 1984 Ga. LEXIS 989 (1984). Evidence insufficient for conviction. - When the state offered no evidence linking defendants to the area where dogfighting and gambling were taking place, but only showed that they were “brought back” from an undetermined place by an unidentified officer and searched next to the dog pit, evidence was insufficient to support convictions for dogfighting and gambling. Barton v. State, 253 Ga. 478, 322 S.E.2d 54, 1984 Ga. LEXIS 989 (1984). Recovery in tort for personal injuries sustained while gambling. - Generally, participation in gambling activities does not prevent recovery in tort for personal injuries in absence of causal relation between illegal act and injuries sustained. Johnson v. Thompson, 111 Ga. App. 654, 143 S.E.2d 51, 1965 Ga. App. LEXIS 1055 (1965). Sentence enhancement inapplicable. - Enhancement under U.S. Sentencing Guidelines Manual § 2T1.1(b)(1) was not applied for purposes of calculating defendant’s sentence for tax evasion; although gambling was a crime under O.C.G.A. § 16-12-21, defendant’s statement that the defendant failed to pay taxes on some poker winnings, even if such winnings were considered by the jury in acquitting defendant of racketeering and bribery charges, was not sufficient to find by a preponderance of the evidence that defendant received more than $10,000 in any given year from unlawful gambling. United States v. Campbell, No. 1:04-CR-0424-RWS, 2006 U.S. Dist. LEXIS 96565 (N.D. Ga. June 15, 2006), aff’d, 491 F.3d 1306, 2007 U.S. App. LEXIS 16722 (11th Cir. 2007).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933,

§§ 26-6501 26-6502 are included in the annotations for this Code section. Fund-raising activities

constituting gambling. - Certain fund-raising activities, often for charitable purposes and generally designated as “Las Vegas Night” or “Casino Night,” constitute gambling or commercial gambling and the equipment used at these activities is gambling paraphernalia. 1983 Op. Att’y Gen. No. 83-48. Magazine advertising contests are not per se illegal, but are illegal if they violate the lottery law. 1970 Op. Att’y Gen. No. U79-123. If an individual signs the individual’s

name to an entry blank with a number on it and returns it to the magazine that is conducting a contest, the individual is not in violation of lottery or gift enterprise scheme statutes. 1969 Op. Att’y Gen. No. 69-58. Conducting a raffle in this state violated former Code 1933, §§ 26-6501 and 26-6502 prohibiting lotteries regardless of how worthy the cause. 1969 Op. Att’y Gen. No. 69-37 (decided under former Code 1933, §§ 26-6501 and 26-6502)

RESEARCH REFERENCES Am. Jur. 2d. 38 Am. Jur. 2d, Gambling, §§ 1 et seq., 111 et seq. C.J.S. 38 C.J.S., Gaming, § 135 et seq. ALR. Each bet or play at gaming on a single occasion, as constituting a distinct offense, 35 A.L.R. 89. Constitutionality of statutes forbidding or regulating dissemination of betting odds or other gambling information, 47 A.L.R. 1135. Punchboard as a lottery, 163 A.L.R. 1279. Rights of owner of stolen money as against one who won it in gambling transaction from thief, 44 A.L.R.2d 1242.

Bridge as within gambling laws, 97 A.L.R.2d 1420. Validity and construction of statute exempting gambling operations carried on by religious, charitable, or other nonprofit organizations from general prohibitions against gambling, 42 A.L.R.3d 663. Construction and application of state or municipal enactments relating to policy or numbers games, 70 A.L.R.3d 897. 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.