The Circuit Court erred in this case, in refusing to give the general charge requested by the defendant, instructing the jury to acquit him if they believed the evidence. The indictment charges the defendant with betting at a game with cards, in violation-of the provisions of section 4209 of the Code, at one of the places therein prohibited. This offense is a misdemeanor, punishable by a fine of not less than fifty, nor more than three hundred dollars. It is a separate and distinct offense from that of flaying a,t a game with cards, denounced by section 4207 of the Code, which is punishable by a fine of not less than twenty, and not more than fifty dollars. The latter offense is not included necessarily in the former, because one may bet at a game played by others. A conviction of flajy*81ing can not, therefore, be had under an indictment for betting. There is no evidence tending to show that the defendant bet any thing at the alleged game with cards. The variance between the allegations and the proof was fatal to the right of any legal conviction.
We need not consider the other points raised by the rulings of the court,
The judgment is reversed, and the cause remanded.