Gambling consists of:

A. making a bet;

B. entering or remaining in a gambling place with intent to make a bet, to participate in a lottery or to play a gambling device;

C. conducting a lottery; or

D. possessing facilities with intent to conduct a lottery.

Whoever commits gambling is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-19-2, enacted by Laws 1963, ch. 303, § 19-2.

Cross references. — For recovery of gambling losses and avoidance of gambling debts, see 44-5-1 NMSA 1978 et seq.

For provision granting immunity from punishment for gambling to one suing to recover losses, see 44-5-14 NMSA 1978.

Double jeopardy not threatened. — Defendant was not convicted of different offense than that with which he was charged, where information cited former 40-22-1, 1953 Comp. and judgment referred to former 40-22-2, 1953 Comp., as the former section merely defines certain acts as unlawful, while the latter section provides the penalty; the essential part of the judgment was finding defendant guilty of operating a game of chance for money, so that the judgment would bar a subsequent prosecution for the same offense. State v. La Rue, 1960-NMSC-054, 67 N.M. 149, 353 P.2d 367 (decided under prior law).

Gambling distinguished from commercial gambling. — Gambling under Subsection A of this section is distinguishable from commercial gambling under 30-19-3B NMSA 1978 in that this section requires only one act whereas 30-19-3B NMSA 1978 requires more than one act to constitute a violation. State v. Owens, 1984-NMCA-105, 103 N.M. 121, 703 P.2d 898, cert. quashed, 103 N.M. 62, 702 P.2d 1007 (1985).

Longstanding prohibition. — The declared prohibition against gambling in any manner or form has long been a part of the existing law of this state. Ross v. State Racing Comm'n, 1958-NMSC-117, 64 N.M. 478, 330 P.2d 701.

Frequenting and keeping game distinguished. — To frequent a gambling table of a banking game was one offense and to keep such table was another. Territory v. Copely, 1873-NMSC-007, 1 N.M. 571 (decided under prior law).

Distribution of common lands by lot illegal. — Scheme whereby community land grant attempted to distribute some 10,000 acres of common lands among almost 2000 heirs by lottery, at a nominal fee, amounted to a violation of the statute law of this state prohibiting lotteries, as well as amounting to a dissipation of the assets of the corporation, contrary to law. Armijo v. Town of Atrisco, 1957-NMSC-045, 62 N.M. 440, 312 P.2d 91.

Hand held "power bingo". — Hand held electronic devices known as "Power Bingo" are "gambling devices" within the meaning of this section and 30-19-3 NMSA 1978, and such units may not be used in New Mexico. Citation Bingo, Ltd. v. Otten, 1996-NMSC-003, 121 N.M. 205, 910 P.2d 281.

Defendants not exempt from punishment. — Where defendants, immediately prior to trial for playing at a game of chance for money, filed a civil action for recovery of individual gambling losses under 44-5-14 NMSA 1978, they were not entitled to exemption from punishment provided for in that section. State v. Schwartz, 1962-NMSC-119, 70 N.M. 436, 374 P.2d 418.

Standing to challenge validity. — Because defendants were charged with a violation of 30-19-3F NMSA 1978, they had no standing to challenge 30-19-3E NMSA 1978 and this section. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.

Admission of "other crimes" held prejudicial. — The admission of evidence of "other crimes, wrongs and misconduct" is prejudicial error where it laps over into a smear on gambling and general criminal activity, destroying the justification of relevance on a particular issue of intent. United States v. Biswell, 700 F.2d 1310 (10th Cir. 1983).

Gambling contract unenforceable. — An action cannot be maintained on a contract that is illegal or against public policy, where both parties are equally culpable. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922.

Raffle where purchase unnecessary. — The offering by a nightclub and package store of raffle tickets to patrons upon their entry into the premises, for a drawing to be held once a week at which prizes would be given away, so long as an individual might participate in the drawing without being required to purchase something (part with anything of pecuniary value), this would not fall within the statutory definition of a lottery and is not prohibited by this section. 1973 Op. Att'y Gen. No. 73-31.

Raffle at $50 per plate dinner. — A noncharitable organization may not hold a public dinner, the cost of which is $50 per ticket, and at which the organization gives away prizes varying in value from a few cents to several hundred dollars, drawn by lot. 1969 Op. Att'y Gen. No. 69-60.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 26 to 54.

Entrapment to commit offense with respect to gambling or lotteries, 31 A.L.R.2d 1212.

Coin-operated pinball machine or similar device, played for amusement alone or confining reward to privilege of free replays, as prohibited or permitted by anti-gambling laws, 89 A.L.R.2d 815.

Bridge as within gambling laws, 97 A.L.R.2d 1420.

Private residence: gambling in private residence prohibited or permitted by anti-gambling laws, 27 A.L.R.3d 1074.

Advertising: promotion schemes of retail stores as criminal offense under anti-gambling laws, 29 A.L.R.3d 888.

Criminal liability of member or agent of private club or association, or of owner or lessor of its premises, for violation of state or local liquor or gambling laws thereon, 98 A.L.R.3d 694.

Validity of statute or ordinance prohibiting or regulating bookmaking or pool selling, 80 A.L.R.4th 1079.

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.

Construction and application of statute or ordinance prohibiting or regulating bookmaking or pool selling, 84 A.L.R.4th 740.

38 C.J.S. Gaming § 84 et seq.; 54 C.J.S. Lotteries § 22.