Chapter 44, Article 5, Gambling Debts and Losses
44-5-1. [Money and property losses; loser’s right of action for recovery; nature of remedy.]
Any person who shall lose any money or property at any game at cards, or at any gambling device, may recover the same by action of debt, if money; if property, by action of trover, replevin or detinue.
44-5-2. [Contents of complaint.]
In such action it shall be sufficient for the plaintiff to declare generally as in actions for debt for money had and received for the plaintiff’s use, or as in actions of trover or detinue for a supposed finding and the detaining or converting the property of the plaintiff to the use of the defendant whereby an action hath accrued to the plaintiff.
44-5-3. Action maintainable by spouse, children, heirs, executors, administrators and creditors or [of] loser. (1973)
The spouse, children, heirs, executors, administrators and creditors of the person losing may have the same remedy against the winner as provided in Sections 44-5-1 and 44-5-2 NMSA 1978.
44-5-4. Judgments, conveyances and contracts founded on gambling loss void; suit to declare void; parties. (1955)
All judgments, securities, bonds, bills, notes or conveyances, when the consideration is money or property won at gambling, or at any game or gambling device, shall be void, and may be set aside or vacated by any court of equity upon a bill filed for that purpose, by the person so granting, giving, entering into or executing the same or by any creditor or by his executors, administrators, or by any heir, purchaser or other persons interested therein; provided however, that the holder in due course of any such security, bond, bill or note which is otherwise negotiable holds such instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of such instrument for the full amount thereof against all parties liable thereon.
44-5-5. [Defense in action by assignee.]
The assignment of any bond, bill, note, judgment, conveyance or other security, shall not affect the defense of the person executing the same.
44-5-6. [Loss by minor, servant or apprentice in grocery, store or dramshop; proprietor liable; who may sue.]
If any minor, servant or apprentice shall lose any money or property in any grocery, store or dramshop by betting at cards, or any other gambling device, or by any other bet, wager or hazard whatever, the father, mother, relations or guardian of such minor, or the master of such apprentice or servant may sue for and recover from the keeper of such grocery, store or dramshop, such money or property or the value thereof, so lost by such minor, apprentice or servant.
44-5-7. [How defenses under this article may be asserted.]
Any matter of defense, under this chapter [ 44-5-1 to 44-5-14 NMSA 1978], may be specially pleaded, or given in evidence, under the general issue.
44-5-8. [Suit before magistrate; interrogatories to defendant.]
In all suits, under this chapter [ 44-5-1 to 44-5-14 NMSA 1978], before a justice of the peace [magistrate], the plaintiff may call in the defendant to answer, on oath, any interrogatory touching the case, and if the defendant refuse to answer, the same shall be taken as confessed.
44-5-9. [Answer to interrogatories not evidence in criminal prosecution.]
Such answer shall not be admitted against such person as evidence in any criminal proceeding.
44-5-10. [Election bets included.]
Bets and wagers on an election authorized by the constitution and laws of the United States, or by the laws of this state, are gaming within the meaning of this chapter [ 44-5-1 to 44-5-14 NMSA 1978].
44-5-11. [Stakeholder’s liability; demand required.]
Every stakeholder who shall knowingly receive any money or property, staked upon any betting, declared gaming by the provisions of this chapter [ 44-5-1 to 44-5-14 NMSA 1978], shall be liable to the party who placed such money or property in his hands, both before and after the determination of such bet, and the delivery of the money or property to the winner shall be no defense to an action brought by the loser for the recovery thereof: provided, that no stakeholder shall be liable afterwards, unless a demand has been made upon such stakeholder for the money or property in his possession previous to the expiration of the time agreed upon by the parties for the determination of such bet or wager.
44-5-12. [Garnishment against winner in action by creditor against loser.]
Any creditor to any person losing by any game at cards or any other gambling device, in addition to the remedy provided by the above sections of this chapter [ 44-5-1 to 44-5-14 NMSA 1978], shall have the right to garnishee the winner in any proceeding by attachment or execution, and the same proceeding shall be had thereon as if such winner were a debtor of the party losing to the amount of money, property, rights or credits, that may appear to have been so won by said winner from the party losing.
44-5-13. [Time for commencing action.]
Any action for money or property brought under this chapter [ 44-5-1 to 44-5-14 NMSA 1978], shall be commenced within one year from the time such action accrued, and not afterwards.
44-5-14. Action for recovery; immunity. (1973)
All persons who shall claim money or property lost at gaming, or when said money or property may be claimed by his spouse, child, relation or friend, said person, although he may have gambled, is hereby exempted from the punishment imposed by the laws prohibiting and restraining gaming.
30-19-1. Definitions relating to gambling.
A. “antique gambling device” means a gambling device manufactured before 1970 and substantially in original condition that is not used for gambling or commercial gambling or located in a gambling place;
B. “bet” means a bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement. A bet does not include:
(1) bona fide business transactions that are valid under the law of contracts, including:
(a) contracts for the purchase or sale, at a future date, of securities or other commodities; and
(b) agreements to compensate for loss caused by the happening of the chance, including contracts for indemnity or guaranty and life or health and accident insurance;
(2) offers of purses, prizes or premiums to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance or to the bona fide owners of animals or vehicles entered in such contest;
(3) a lottery as defined in this section; or
(4) betting otherwise permitted by law;
C. “gambling device” means a contrivance other than an antique gambling device that is not licensed for use pursuant to the Gaming Control Act [Chapter 60, Article 2E NSMA 1978] and that, for a consideration, affords the player an opportunity to obtain anything of value, the award of which is determined by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the device;
D. “gambling place” means a building or tent, a vehicle, whether self-propelled or not, or a room within any of them that is not within the premises of a person licensed as a lottery retailer or that is not licensed pursuant to the Gaming Control Act [Chapter 60, Article 2E NSMA 1978], one of whose principal uses is:
(1) making and settling of bets;
(2) receiving, holding, recording or forwarding bets or offers to bet;
(3) conducting lotteries; or
(4) playing gambling devices; and
E. “lottery” means an enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill. “Lottery” does not include the New Mexico state lottery established and operated pursuant to the New Mexico Lottery Act [6-24-1 to6-24-34 NMSA 1978] or gaming that is licensed and operated pursuant to the Gaming Control Act [Chapter 60, Article 2E NSMA 1978].
As used in this subsection, “consideration” means anything of pecuniary value required to be paid to the promoter in order to participate in a gambling or gaming enterprise.
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.
30-19-3. Commercial gambling.
Commercial gambling consists of either:
A. participating in the earnings of or operating a gambling place;
B. receiving, recording or forwarding bets or offers to bet;
C. possessing facilities with the intent to receive, record or forward bets or offers to bet;
D. for gain, becoming a custodian of anything of value, bet or offered to be bet;
E. conducting a lottery where both the consideration and the prize are money, or whoever with intent to conduct a lottery, possesses facilities to do so; or
F. setting up for use, for the purpose of gambling, or collecting the proceeds of, any gambling device.
Whoever commits commercial gambling is guilty of a fourth degree felony.
30-19-4. Permitting premises to be used for gambling.
Permitting premises to be used for gambling consists of:
A. knowingly permitting any property owned or occupied by such person or under his control to be used as a gambling place; or
B. knowingly permitting a gambling device to be set up for use for the purpose of gambling in a place under his control.
Whoever commits permitting premises to be used for gambling is guilty of a petty misdemeanor.
30-19-5. Dealing in gambling devices
A. Dealing in gambling devices consists of manufacturing, transferring commercially any of the following:
(1) anything which he knows evidences, purports to evidence or is designed to evidence participation in gambling; or
(2) any device which he knows is designed exclusively for gambling purposes or anything which he knows is designed exclusively as a subassembly or essential part of such device. This includes, without limitation, gambling devices, numbers jars, punchboards and roulette wheels.
Proof of possession of any device designed exclusively for gambling purposes which is not in a gambling place and is not set up for use is prima facie evidence of possession with intent to transfer.
B. The provisions of this section shall not apply to any manufacturer of gambling devices who exports his product exclusively in foreign commerce, and who is under ten thousand dollar ($10,000) bond payable to the state of New Mexico to assure export. Provided, however, the provisions of this section shall apply to manufacturers of gambling devices used, adapted, devised or designed to be used in bookmaking, in wagering pools with respect to a sporting event, or in a numbers, policy, bolita or similar game.
C. Nothing in this section shall be construed to prohibit the ownership, possession, display, sale, purchase, exchange or transfer of antique gambling devices.
D. Whoever deals in gambling devices, other than those herein specified and excluded, is guilty of a misdemeanor.
30-19-6. Permissive lottery.
A. Nothing in Chapter 30, Article 19 NMSA 1978 shall be held to prohibit any bona fide motion picture theater from offering prizes of cash or merchandise for advertising purposes, in connection with such business or for the purpose of stimulating business, whether or not any consideration other than a monetary consideration in excess of the regular price of admission is exacted for participation in drawings for prizes.
B. Nothing in Chapter 30, Article 19 NMSA 1978 shall be construed to apply to any activity:
(1) regulated by the New Mexico Bingo and Raffle Act [60-2F-1 NMSA 1978]; or
(2) specifically exempted from regulation by the provisions of the New Mexico Bingo and Raffle Act.
30-19-7. Fraudulently operating a lottery.
Fraudulently operating a lottery consists of operating or managing any lottery which does not provide a fair and equal chance to all participants, or which lottery is conducted in a manner tending to defraud or mislead the public.
Whoever commits fraudulently operating a lottery is guilty of a misdemeanor.
30-19-7.2. Recreational bingo exception.
Nothing in this chapter or in the New Mexico Bingo and Raffle Act [60-2B-1 to 60-2B-14 NMSA 1978] prohibits a senior citizen group from organizing and conducting bingo at a senior citizen center, provided that no person other than players participating in the bingo game receive or become entitled to receive any part of the proceeds, either directly or indirectly, from the bingo game, and no minor is allowed to participate in the organization or conduct of games or play bingo. As used in this section, “senior citizen group” means an organization in which the majority of the membership consists of persons who are at least fifty-five years of age and the primary activities and purposes of which are to provide recreational or social activities for those persons.
30-19-8. Gambling and gambling houses as public nuisance.
Except as otherwise permitted or excepted under this article [30-19-1 to 30-19-15 NMSA 1978], any gambling device or gambling place is a public nuisance per se.
The attorney general, any district attorney or any citizen of this state may institute an injunction proceeding to have such public nuisance abated. In the event such injunction is issued on behalf of any citizen of this state it shall not be necessary in such proceeding to show that he is personally injured by the act complained of.
30-19-9. Evidence of unlawful use of premises….
30-19-10. Forfeiture of equipment….
30-19-11. Remedy of lessor….
30-19-12. Duties of enforcement officials….
30-19-13. Bribery of participant in a contest.
Bribery of participant in a contest consists of:
A. the transferring or promise to transfer anything of value to any person with intent to influence thereby any participant in a contest to refrain from exerting his full skill, speed, strength or endurance in such contest; or
B. the agreeing or offering by a participant in a contest, to refrain from exerting his full skill, speed, strength or endurance, in return for anything of value transferred or promised to himself or another.
The term “participant” as used in this section includes any person who is selected to or expects to take part in any such contest.
Whoever commits bribery of participant in a contest is guilty of a fourth degree felony.
30-19-14. Testimony of witnesses to gambling.
Any district judge or justice of the peace [magistrate court] having jurisdiction over any of the crimes enumerated in this article [30-19-1 to 30-19-15 NMSA 1978], or any district attorney inquiring into the alleged violation of any of the provisions of this article, may subpoena persons and compel their attendance as witnesses and may compel such witnesses to testify concerning any violation of this article.
Any person who is so subpoenaed and examined shall be immune to prosecution or conviction for any violation of this article about which he testifies.
A conviction may be had for any violation of this article upon the unsupported testimony of any accomplice or participant.
30-19-15. Unlawful to accept for profit anything of value to be transmitted or delivered for gambling; penalty.
A. It is unlawful for any person to, directly or indirectly, knowingly accept for a fee, property, salary or reward anything of value from another to be transmitted or delivered for gambling or pari-mutuel wagering on the results of a race, sporting event, contest or other game of skill or chance or any other unknown or contingent future event or occurrence whatsoever.
B. None of the provisions of this act shall be construed to prohibit the operation or continued operation of bingo programs presently conducted for charitable purposes.
C. Any person violating any of the provisions of this section is guilty of a fourth degree felony.
In the Gaming Control Act, 60-2E, New Mexico authorized legalized, regulated casino gambling and has also authorized certain charitable organizations to conduct bingos and raffles in 60-2B.