§712-1231  Social gambling; definition and
specific conditions, affirmative defense.  (a)  Definition.  "Social
gambling" means gambling in which all of the following conditions are
present:



(1)  Players compete on equal terms with each other;
and



(2)  No player receives, or becomes entitled to
receive, anything of value or any profit, directly or indirectly, other than
the player's personal gambling winnings; and



(3)  No other person, corporation, unincorporated
association, or entity receives or becomes entitled to receive, anything of
value or any profit, directly or indirectly, from any source, including but not
limited to permitting the use of premises, supplying refreshments, food,
drinks, service, lodging or entertainment; and



(4)  It is not conducted or played in or at a hotel,
motel, bar, nightclub, cocktail lounge, restaurant, massage parlor, billiard
parlor, or any business establishment of any kind, public parks, public
buildings, public beaches, school grounds, churches or any other public area;
and



(5)  None of the players is below the age of majority;
and



(6)  The gambling activity is not bookmaking.



(b)  Affirmative defense:



(1)  In any prosecution for an offense described in
[section] 712-1223, 712-1224, 712-1225 or 712-1226, a defendant may assert the
affirmative defense that the gambling activity in question was a social
gambling game as defined in [section] 712-1231(a).



(2)  If the defendant asserts the affirmative defense,
the defendant shall have the burden of going forward with evidence to prove the
facts constituting such defense unless such facts are supplied by the testimony
of the prosecuting witness or circumstance in such testimony, and of proving
such facts by a preponderance of evidence.



(c)  In any prosecution for an offense
described in this part the fact that the gambling activity involved was other
than a social gambling game shall not be an element of the offense to be proved
by the prosecution in making out its prima facie case. [L 1973, c 201, pt of
§1; gen ch 1993]



 



COMMENTARY ON §712-1231



 



  Section 712-1231 is a completely new and rewritten section
set forth by Act 201, Session Laws 1973.  This section defines "social
gambling" as gambling activity that meets all the prescribed conditions. 
These conditions are:  (1) that all players engage as contestants on
"equal terms"; (2) that no profiting be involved--other than the
player's winnings; (3) that it should not be conducted at certain enumerated
places, such as hotels, school grounds, public parks, any business
establishment, etc.; (4) that no minor be involved in the game; and (5) that
the gambling activity is not bookmaking.  (Senate Standing Committee Report No.
806 (1973).)



  With respect to the concept of prohibiting gambling in
enumerated places, the Standing Committee Report states:



  "Your Committee notes the addition of the concept that
gambling in certain enumerated places such as hotels, public parks, etc.-- is
prohibited and that gambling conducted in such places is not to come within the
protected confines of 'social gambling.'  It is felt that this addition to the
law clarifies the Legislature's intent to prevent the intrusion of hotel and
casino type operations into this State, as well as prevent exposure of gambling
to children in public parks, school grounds, etc.



  "In this connection, casual gambling activities in a
social context, involving contests of skill, and conducted in places other than
those enumerated in the law, such as casual bets between golfers or bowlers
would be 'social gambling'."



  Section 712-1231 provides that in any prosecution for an
offense described in §712-1223, 1224, 1225, or 1226, the defendant may assert
the affirmative defense that the gambling activity was a social gambling game
as defined in this section.  In respect thereto, the Standing Committee Report
No. 806 (1973), Senate Judiciary Committee, states:



  "There has been considerable concern whether the
affirmative defense provisions of the Hawaii Penal Code are constitutional.  In
that regard, your Committee understands that statutorily prescribed affirmative
defenses have been held constitutional.  See Territory of Hawaii v. Shizuichi
Yamamoto, et. al., 39 Haw. 556 (1952); McKelvey v. United States, 260 U.S. 353
(1922); United States v. Sidney B. Rowlette, et. al., 297 F.2d 475 (1968); and
U.S. v. Carl Oslin Rumzy, Jr. 446 F.2d 1184 (1971).



  "A major change affected is the erasure of any mandatory
requirement that the defendant utilize this affirmative defense.  We note that
this is an area of great concern.  That is, whether the affirmative defense in
the existing law forces the defendant, as a legal requirement, to testify in
potential self- incrimination.



  "Without addressing ourselves to any other application
of the affirmative defense in the Hawaii Penal Code, your Committee notes the
existing law was to provide in §712-1231(b) that a defendant's resort to the
affirmative defense is discretionary.  See People v. Felder, 334 N.Y.S. 2d 992
(1972).



  "There appears to be some confusion as to the prosecutor's
burden of proof in relation to the defense of social gambling.  It is intended
that the prosecution should not have the burden of proving as part of its prima
facie case, that the gambling activity in question was other than a social
gambling game.  Accordingly, an explicit statement to that effect was included
in §712-1231(c).



  "In contrast, it is the intent that the defendant shall
be entitled to acquittal on the basis of the affirmative defense only if the
trier of the facts finds by a preponderance of the evidence the facts
constituting the affirmative defense.  In other words, the defendant has both
the burden of going forward with the evidence and the burden of persuasion by a
preponderance of evidence with respect to the affirmative defense of social
gambling."



 



Case Notes



 



  Defendants did not prove that no person other than players
received or became entitled to receive anything of value.  2 H. App. 606, 638
P.2d 338.



  Although it may have been error admitting into evidence, as
expert opinion under HRE rule 702, officer's testimony concerning subsection
(b), the social gambling defense, where defendant was not entitled to this
defense in a prosecution for promoting gambling in the first degree under
§712-1221(1)(c), error was harmless.  92 H. 98 (App.), 987 P.2d 996.