[Posted February 27, 2013] As this is the Supreme Court’s session week, we should shortly expect decisions in the appeals that were argued in the January session. Of those, the one in which I have the keenest interest is Daniels v. Mobley, a case that arose down here in Tidewater. It’s a challenge to Virginia’s gambling statute, brought by someone who wants to play good, old-fashioned poker.

Now, if you can keep a secret, I’ll confess that I occasionally take part in a poker game with a great group of pals, although we do it the legal way (in a private residence where there is no “operator” – see Code §18.2-334). But Daniels evidently wants to do it a tad more openly, so he filed suit against the Portsmouth Commonwealth’s Attorney, seeking a declaration that poker was not proscribed by the statute because it’s a game of skill, not primarily one of chance. If that’s the case, then you can have a poker game anywhere, including in a hall that’s specifically set up for that purpose. The trial court ruled in favor of the CA, but Daniels got a writ.

Over the course of this website’s history, dating back to January 2005, I have never engaged in open speculation about the outcome of a pending appeal. I don’t want any suggestion that I’m kibitzing in the appellate process by posting commentary about a pending case that isn’t my own. But I feel safe in breaking with that tradition today, in forecasting how this one will come out when the opinions hit the wire. As for any thought of undue influence, I assure you that the justices have already made up their minds, and the opinion has already been written, so whatever I post here is extraordinarily unlikely to faze anyone on Ninth Street.

One other factor emboldens me to make this prediction: My favorite author has already made the call for me. Here is the complete text of Mark Twain’s short-short story, “Science vs. Luck,” which he wrote in 1867, long before the Portsmouth controversy arose:

At that time, in Kentucky (said the Hon. Mr. K—–); the law was very strict against what is termed “games of chance.” About a dozen of the boys were detected playing “seven up” or “old sledge” for money, and the grand jury found a true bill against them. Jim Sturgis was retained to defend them when the case came up, of course. The more he studied over the matter, and looked into the evidence, the plainer it was that he must lose a case at last–there was no getting around that painful fact. Those boys had certainly been betting money on a game of chance. Even public sympathy was roused in behalf of Sturgis. People said it was a pity to see him mar his successful career with a big prominent case like this, which must go against him.

But after several restless nights an inspired idea flashed upon Sturgis, and he sprang out of bed delighted. He thought he saw his way through. The next day he whispered around a little among his clients and a few friends, and then when the case came up in court he acknowledged the seven-up and the betting, and, as his sole defense, had the astounding effrontery to put in the plea that old sledge was not a game of chance! There was the broadest sort of a smile all over the faces of that sophisticated audience.

The judge smiled with the rest. But Sturgis maintained a countenance whose earnestness was even severe. The opposite counsel tried to ridicule him out of his position, and did not succeed. The judge jested in a ponderous judicial way about the thing, but did not move him. The matter was becoming grave. The judge lost a little of his patience, and said the joke had gone far enough. Jim Sturgis said he knew of no joke in the matter–his clients could not be punished for indulging in what some people chose to consider a game of chance until it was proven that it was a game of chance.

Judge and counsel said that would be an easy matter, and forthwith called Deacons Job, Peters, Burke, and Johnson, and Dominies Wirt and Miggles, to testify; and they unanimously and with strong feeling put down the legal quibble of Sturgis by pronouncing that old sledge was a game of chance.

“What do you call it now?” said the judge.

“I call it a game of science!” retorted Sturgis; “and I’ll prove it, too!”

They saw his little game.

He brought in a cloud of witnesses, and produced an overwhelming mass of testimony, to show that old sledge was not a game of chance but a game of science.

Instead of being the simplest case in the world, it had somehow turned out to be an excessively knotty one. The judge scratched his head over it awhile, and said there was no way of coming to a determination, because just as many men could be brought into court who would testify on one side as could be found to testify on the other. But he said he was willing to do the fair thing by all parties, and would act upon any suggestion Mr. Sturgis would make for the solution of the difficulty.

Mr. Sturgis was on his feet in a second.

“Impanel a jury of six of each, Luck versus Science. Give them candles and a couple of decks of cards. Send them into the jury-room, and just abide by the result!”

There was no disputing the fairness of the proposition. The four deacons and the two dominies were sworn in as the “chance” jurymen, and six inveterate old seven-up professors were chosen to represent the “science” side of the issue. They retired to the jury-room.

In about two hours Deacon Peters sent into court to borrow three dollars from a friend. [Sensation.] In about two hours more Dominie Miggles sent into court to borrow a “stake” from a friend. [Sensation.] During the next three or four hours the other dominie and the other deacons sent into court for small loans. And still the packed audience waited, for it was a prodigious occasion in Bull’s Corners, and one in which every father of a family was necessarily interested.

The rest of the story can be told briefly. About daylight the jury came in, and Deacon Job, the foreman, read the following:


We, the jury in the case of the Commonwealth of Kentucky vs. John Wheeler et al., have carefully considered the points of the case, and tested the merits of the several theories advanced, and do hereby unanimously decide that the game commonly known as old sledge or seven-up is eminently a game of science and not of chance. In demonstration whereof it is hereby and herein stated, iterated, reiterated, set forth, and made manifest that, during the entire night, the “chance” men never won a game or turned a jack, although both feats were common and frequent to the opposition; and furthermore, in support of this our verdict, we call attention to the significant fact that the “chance” men are all busted, and the “science” men have got the money. It is the deliberate opinion of this jury, that the “chance” theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it.

“That is the way that seven-up came to be set apart and particularized in the statute-books of Kentucky as being a game not of chance but of science, and therefore not punishable under the law,” said Mr. K—–. “That verdict is of record, and holds good to this day.”

I believe that Virginia’s justices will side with Ol’ Sam Clemens in this one. After all, if poker is really about chance, why do the same guys show up year after year at the final table of the World Series of Poker? If it were chance, wouldn’t you get a slew of different faces each time?

Tune in tomorrow to find out how good my predictive powers are. If it turns out that I’m wrong, I may decide to blame Twain.