In the first and third counts of this indictment it is charged that the appellant and four other persons, whose names are disclosed, “ did bet together and against each other divers large sums of money, to wit: the sum of fifty cents, at and upon a certain unlawful game of cards,” (fee.; and in the other count it is charged that the same five persons “did bet together divers other large sums of money,” &c. The evidence presented by the bill of exceptions to the opinion of the court overruling the motion for a new trial, establishes that the appellant stood by while the other four played cards, and that the appellant and one of the card-players bet twenty-five cents on the game, but that he (the appellant) did not bet with any other person, and that two others of the card-players bet on the game, but that the remaining card player did not bet at all. So that only three other persons besides the appellant bet on the game, and not four others, as charged in all the counts of the indictment.
The indictment is predicated upon the 8th section of the 3d article of the 6th Division of the statute of Criminal Jurisprudence, Revised Statutes, 274; and, unfortunately for the State, the offence is charged in a manner so unneessarily complicated as to.be extremely diffieult.of proof; but having charged it in this manner, it was devolved upon her to prove it as charged. It is true that the presumption of law is in favor of the verdict, and that unless the record affirmatively overthrows this presumption, it must not be disturbed. But in a case like this it is manifest that wrong and injustice might grow out of the verdict, if not overthrown, since another indictment might be framed and a second conviction had (if attempted within the time limited by law for the prosecution of the offence) upon the identical same testimony: Wherefore, although the testimony abundantly shows that the. appellant violated the law, it does not establish the charge as laid in the indictment and support the verdict and judgment thereon. And consequently, as the court below erred in overruling the appellant’s motion for a new trial, the judgment of that court must be reversed, and the cause remanded to be proceeded in.