Indictment for keeping and maintaining a tenement in the town of Uxbridge, used as a house of ill fame, resorted to for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors, being then and there a common nuisance.
It appears by the exceptions that the defendant requested the judge to instruct the jury that there was no evidence that the beer sold by the defendant in his tenement was intoxicating; but that the court declined so to do, and left the question to the jury. Perhaps, when there is no competent evidence to support the issue by the party holding the affirmative, it is competent for the court so to instruct the jury. But when there is competent and appropriate evidence, it must be submitted to the jury with proper directions, and they are to decide on its weight. Here, though, as stated, the evidence seems not to have been strong, there was evidence bearing upon the issue, which was for keeping and maintaining, for a long time, a common nuisance, by gaming and the sale of intoxicating liquors. It was kept for a long time for the sale of beer, which might *29or might not be intoxicating. The opinion of those who were called as witnesses was not conclusive ; and persons were seen, whether rarely or frequently does not appear, going out and in in a state of intoxication. The evidence having been left to the jury with proper instructions, we think that this exception cannot be sustained.
We think also the direction was right in respect to the place being resorted to for the purpose of gaming.
On the other point, we think the direction of the judge was right. All gaming is unlawful by the law of this commonwealth ; and it is gaming to play any game of hazard, for money or other article of value. A game of hazard, to determine who shall pay for the beer or other liquor to be drank, is strictly playing for money; it is to determine which party shall pay a sum of money for the other.
It was properly left to the jury to say whether persons resorted to the defendant’s house for the purpose of gaming. In general it is a fair conclusion to hold that persons intend to do that which they habitually do; and if one of the purposes of persons resorting to the defendant’s house was gaming, and that necessarily unlawful gaming, and that habitually allowed by the defendant as keeper of the house, it brought him within the statute.
The indictment sufficiently charges the defendant with keeping a tenement as a nuisance. Exceptions overruled.