Campbell v. State

MANNING, J. —

The prosecution in this case is for knowingly suffering gaming at cards, in the house, or on the premises, occupied and used by the defendant for the retailing of spirituous and other liquors. That the gaming was in the upper story of the house, while the retailing was done in the lower, does not prevent it from being done on the premises, if the upper story was under the control of defendant. — Johnson v. The State, 19 Ala. 527; Huffman v. The State, 29 Ib. 40; Cochran v. The State, 30 Ib. 542; Moore v. The State, 30 Ib. 550. Prima facie, the premises are an entirety. And if there be any such separation of tbe upper rooms from tbe lower, as would exonerate defendant from tbe charge of suffering gaming to be done therein, it devolved on him to prove it. He has shown that he hired the front room, over the barroom, to one Wesley Duncan as a sleeping room; and it is proved that the latter keeps it as a sleeping room, and gaming room for card-playing. The access to it is by two outside flights of steps, one from the back yard in the rear of the apartments used by defendant, and the other from near the front of the same, and by the side of the house. Drinks are sent for, by those engaged in playing up stairs, to the bar-room below, and the liquors sent up are ^ paid for in money, or in “chips,” or “cheques,” used as counters in the games. Other evidence also tends to show that defendant knows that the room above is used as a gaming room. What the terms were of the hiring of the room to Duncan are not shown. He was not introduced as a witness.

Defendant himself being lessee of the entire house, and in possession of all of it until the one room was hired to Duncan, and using a part of the lower story as a place for retailing vinous, spirituous, and other liquors, was bound to be diligent to prevent gaming with cards, dice, and other devices, to be carried on therein. Any alliance between these two occupations is regarded as a very great evil. So solicitous is the law concerning it, that it requires of a person receiving a license as retailer, to make and file an affidavit that he will not “ allow any gaming of any kind on or about [his] premises.” — Acts of 1875-6, p. 227. It is but a poor excuse, that the gaming is not done in the rooms he himself occupies, if it be done in a room of which he has the hiring out, and for which he can prescribe the terms of the holding, and in a house in which he retails spirituous and vinous liquors.

In Horan v. Chief Justice of Travis County (27 Texas, 226), it is well said: “ The object of the law, in demanding a bond with a heavy penalty from a party to whom a license to retail spirituous liquors is granted, is to separate and keep apart the vicious propensities to game and to drink ardent spirits, so that the excitement of the one should not incite indulgence in the other. If a party who has obtained a license to retail can evade the law, by renting a part of his establishment, in which he has obligated himself not to permit gaming, with the intention and understanding that it is to be used for this purpose, the policy of the law would be defeated, and its administration by the courts would be a mere farce. These observations are applicable to the case before us.

But it should have been left to the jury to determine, ■whether or not defendant did, in good faith, lease the room in the upper story with the intent and expectation that it should not be used as a gaming room, but only as a sleeping room of the tenant, or for other purposes not contrary to law. Under the charge of the court, this office of the jury was withdrawn from them. The .judgment must, therefore, be reversed, and the cause remanded.