Pleasant Black and four others were indicted for playing at cards together and betting money thereon, in a house situate on the premises occupied by Marshall S. Black, in which he retailed spirituous liquors. *Page 261
On the trial the evidence was that the defendant Pleasant Black owned two adjoining lots in the village of Madison, Nos. 28 and 29, fronting on the same street. He occupied both as one tenement, his dwelling-house being on one of them, and on the other a store or shop, situate on the street on front, and a barn and stables situate on the back lines. He let the shop to Marshall S. Black, who retailed merchandise and spirituous liquors therein, and who was also to have the privilege of a place near the shop for laying his firewood. But Pleasant Black continued to occupy all the other parts of both of the lots as he had done before, including the barn and stables; and the gaming charged in the indictment was in the barn.
The counsel for the defendants moved the court to instruct the jury that if Marshall S. Black had no power or control over the barn in which the gaming took place, the defendants were not guilty. But the court refused to give that instruction, and directed the jury "that under the act of (379) Assembly the defendants were guilty, if they played in a house situate on the premises on which the retail shop stood."
The defendants were accordingly convicted, and after sentence they appealed. The statute makes it a misdemeanor to game at cards "in a house where spirituous liquors are retailed, or in any outhouse attached thereto, or any part of the premises occupied with such house." Rev. St., ch. 34, sec. 69. The next section makes the retailer indictable for suffering such gaming in his house or any part of his premises. This language renders it perfectly clear that the place of retailing and the place of gaming must be the same house or, at the least, parts of the same establishment. "The premises" mean those places only which are occupied by the retailer with the house in which he retails, as one whole. They cannot include a place not occupied by him nor even let to him. It is nothing that the two places of retailing and gaming were once occupied together by some one as parts of the same premises; for, if severed and occupied by different persons, when the gaming occurred, they were then not the same premises. That was the case here. The lessee's rights were restricted to the shop itself, with only the liberty of laying firewood near it; and the residue of both lots was occupied by Pleasant Black in severalty. Suppose he had *Page 262 leased the barn and stables to a third person. Clearly, each lessee would occupy his share in severalty; and it would be the same as if he had sold and conveyed to each lessee his own particular premises in fee. The one would not be liable to (380) be indicted for gaming on the premises of the other; and, of course, persons gaming on one parcel on which spirits were not retailed would not be within the statute, although retailing was carried on upon the other. The case is the same when the owner continued in possession of those parts of the lots which he had not leased. They were his premises and not the lessee's. The barn could not be laid as Marshall S. Black's in an indictment for burglary or arson. Indeed, the instruction assumed that he had no control over it; and it follows, necessarily, that it could not be a part of the premises occupied by him.
The judgment was therefore erroneous, and there must be a venire denovo.
PER CURIAM. Ordered to be certified accordingly.
Cited: S. v. Keisler, 51 N.C. 74.