The great gambling house of Morehead, Opstein, & Company was beginning
to be deserted by the crowd that had tempted the fickle goddess all
night long to their great hurt. It was now four o'clock in the morning,
and only one or two of the more desperate losers hung on to play. Snakey
the Parson, a thin delicate knave, with a long innocent, melancholy
face, was dealing faro for the house. "Snakey" was a "special" in the
parlance of the guild; his luck was known to come in "blizzards"; if he
won, to use the manager's language, he won out through the ceiling,
and if he lost, he lost down to his health. For this reason Snakey the
Parson was not a safe man as a "regular," but he was a golden bonanza
when the cards went his way, and to-night they were going his way.
The stragglers drifted out one by one and the dealer was preparing
to quit the table when the door opened and two men entered: one was a
little old man with a white beard and a lean, hungry face; the other
was a big, half-drunken cattle drover. The two came up to the table and
stood for a moment looking at the lay-out. A faint smile passed over
the face of Snakey the Parson, he knew the types well, they were western
cattle-shippers with money.
"How high do ye go, mister?" said the little man.
"Against the sky," answered the dealer, sadly.
"Then I'll jist double me pile," said the little old man, reaching down
into his pocket and fishing up a roll of bills wrapped in a dirty old
newspaper. He counted the money and placed it upon the table.
The dealer looked up in astonishment. "Ten thousand!" he said.
"Yep," answered the old man, "an I want ter bet hit on the jack er
spades."
The dealer pushed a stack of yellow chips across the table.
"No, siree," said the player, "you don't give me no buttons. I' ll put
my pile on this side and you put your pile on t'other side, and the
winner takes 'em."
Snakey the Parson wavered a moment. It was against the rules, but here
was too good a thing to lose. He turned, counted out the money, and
placed it on his right, and began to deal from the box. The cards fell
rapidly. For a time the blacks ran on the side of the house. Suddenly
they changed and the queen and the ten of spades fell on the left. The
dealer saw the card under his thumb and paused. The keen eyes of the old
man were fixed on him. He determined to take the long chance, knowing
that the loss was only temporary; and the jack of spades came up and
fell on the side of the stranger.
With a whoop of joy the old man clutched the money. "I am going to try
her agin!" he cried.
"Hold on," said the big cattle-drover, pushing up to the table; "my wad
is as good as you; it is my turn now."
The dealer grinned. "You can both play, gentlemen," he said, speaking
with a low, sweet accent.
"No, we can't," muttered the drover, with the childish obstinacy of a
half-drunken man. "I want the whole shooting match to myself; he can
have the next whirl at her."
Thereupon the drover dragged a big red pocket book from somewhere inside
his coat, took out a thick, straight package of bills, and laid it down
on the table.
"How much?" said the dealer, running his finger over the end of the
package.
'"Same as Abe's," said the drover.
"Here," said the little old man, peevishly, "if you won't let me play,
bet my roll with yourn," and he pushed the ten thousand of his own money
to his companion, and placed the money, which he had won from the bank,
in his pocket. The drover took the money and piled it up on the ace of
spades.
The dealer's face grew pensive and sweet; it was all right this time; he
was going to round off the night with a golden _coup d' état_. He opened
the safe behind him, counted out twenty thousand in big bills, and piled
it up on one side of the bank. Then he opened the box and began. The old
man wandered around the room; the big, half-drunken cattle-shipper hung
over the table. Snakey, the Parson scarcely saw either; he was intent on
manipulating the box, and his hand darted in and out like a white snake.
Suddenly the ace of spades flew out, and fell on the side of the house.
The quick dealer clapped his left hand over the box and put out his
right for the player's money. As he did so, the big drover bent forward
and thrust a revolver into his face.
"No, you don't," he growled, "this is my money and I will not leave it,
thank you."
Snakey the Parson glanced at the man and knew that he had been fooled,
but he was composed and clear-headed. Under the box on the right were
weapons and the electric button; he began to take his right hand slowly
from the table.
"Stop!" said the drover, sharply, "that game won't work!"
The dealer looked up into the player's face, and dropped his hands; he
was a brave man, and desperate, as gamblers go, but he knew death when
he saw it; his face turned yellow and became ghastly, but he did not
move.
The drover took up his money from the lay-out, and handed it to the
old man. He used his left hand only, and did not take his eyes from the
gambler's face. The old man thrust the bundle of bills in his pocket,
and hurried from the room. The gambler sat rigid as a wax figure. The
drover waited until his companion had sufficient time to get thoroughly
away from the house; then he began to move slowly backward to the door,
keeping the gambler covered with the weapon. The faro dealer watched
every move of the drover, like a hawk, but he did not attempt to take
his hand from the table; the muzzle of the revolver was too rigid; it
was simply moving backward from his face in a dead straight line. At
the door the drover stopped, drew himself together, then sprang suddenly
through and bounded down the stairs.
Snakey the Parson touched the electric button, and as the drover rushed
into the street, two policemen caught him by the shoulder.
V
Well," said the Police Chief, "I am tired of making an ass of myself;
Mr. Mason says this cattle drover has committed no crime except a petty
assault, and if he is right, I want to know it. That man beats the very
devil. Every time I have sent up a case against his protest the judges
have pitched me out on my neck, and the thing has got to be cursedly
monotonous."
The District Attorney smiled grimly, and turned around in his chair.
"Have you given me all the details?" he said.
"Yes," answered the official, "just exactly as they occurred."
The District Attorney arose, thrust his hands into his pockets, and
looked down at the great man-hunter; there was a queer set to his mouth,
and the merest shadow of a twinkle in his eyes.
"Well, my friend," he said, "you are pitched out on your neck again."
The official drew a deep breath, and his face fell. "Then it is not
robbery?" he said.
"No," answered the attorney.
"Well," mused the Police Chief, "this law business is too high for me. I
have spent my life dealing with crimes, and I thought I knew one when I
saw it; but I give it up, I don't know the first principles. Why, here
is a fellow who voluntarily goes into a gambling house, plays and loses,
then draws a revolver and forcibly takes away the money which, by the
rules of the play, belongs to the house; robs the dealer by threatening
to kill him; steals the bank's money, and fights his way out. It cannot
matter that the man robbed was a lawbreaker himself, or that the crime
occurred in a gambling house. It is the law of New York that has been
violated; the place and parties are of no importance. Here is certainly
the force and the putting in fear that constitute the vital element of
robbery; and yet you say it is not robbery. You have me lost all right."
"My dear sir," put in the District Attorney, "the vital element of
robbery is not the force and terror but is what is called in the books
the _animus furandi_, meaning the intention to steal. The presence of
this felonious intent determines whether or not the wrong is a crime.
If it be not present there can be no robbery, no matter how great
the force, violence, or putting in fear, or how graven serious, or
irreparable the resulting injury.
"It is true indeed that the force and terror are elements, but the vital
one is the intent. If force and violence one takes his own property from
the possession of another, it is no robbery; nor is it robbery for one
to take the property of another by violence under the belief that it
is his own, or that he has some right to it, or by mistake or
misunderstanding, although vast loss be caused thereby and great wrong
and hurt result."
"I have no hope of ever understanding it," said the Police Chief; "I am
only a common man with a short life time."
"Why, sir," continued the attorney, "it is as plain as sunlight. Robbery
is compounded of larceny and force. It is larceny from the person by
violence, but in order to constitute it the property must be taken
from the peaceable possession of the party and it must be taken _animo
furandi_. Neither of these happened in the case you state, because the
faro dealer, by means of an unlawful game, could not secure any color
of right or title to the money which he should win by it. Therefore the
money taken was not his property, and could not have been taken from his
peaceable possession.
"In the second place, this vital element of robbery, the animus furandi,
is totally wanting, for the reason that the player, in forcibly seizing
the money which he had lost, was actuated by no intention to steal,
but, on the contrary, was simply taking possession of his own property,
property to which he had a full legal right and title."
"But," put in the officer, "there was the other ten thousand which the
old man won, they got away with that; if the game was unlawful they had
no right to that."
"True," said the lawyer. "The old man had no title to the ten thousand
which he had won, but he did not steal it; the dealer gave it to him of
his own free will, and the old man had it in his possession by the full
voluntary consent of the dealer some time before the resort to violence.
There was clearly no crime in this."
"Damn it all!" said the Police Chief, wearily, "is there no way to get
at him, can't we railroad him before a jury?"
The District Attorney looked at the baffled officer and grinned
ominously. "My friend," he said, "there is no power in Venice can alter
a decree established. The courts have time and again passed upon cases
exactly similar to this, and have held that there was no crime, except,
perhaps, a petty misdemeanor. We could not weather a proceeding on
_habeas corpus_ ten minutes; we could never get to a jury. When the
judge came to examine the decisions on this question we would go out, as
you expressed it, on our necks."
"Well," muttered the Police Chief, as he pulled on his coat, "it is just
as Randolph Mason said, out he goes."
The attorney laughed and turned to his desk. The officer crossed to
the door, jerked it open, then stopped and faced round. "Mr. District
Attorney," he said, "won't there be hell to pay when the crooks learn
the law?" Then he stalked through and banged the door after him.
The District Attorney looked out of the window and across the street at
the dirty row of ugly buildings. "Humph!" he said, "there is something
in that last remark of the Chief."