Ballentine was indicted for permitting gaining in his “ dram-shop or grocery.” It is argued that the use of the words “dram shop” and “grocery,” accompanied by the disjunctive “or,” renders the indictment uncertain. The word “ grocery ” does not appear in the statute which defines the offense. [Mans. Dig., sec. 1856) If it is intended as a synonym for “ dram-shop” it is harmless. If it was used in a different sense it is surplusage merely, and should be disregarded, the real offense being the permitting of gaming in the dram-shop.
1. Indictment for gaming in dram shop.
2, Criminal Practice: Errors cured by co urt.
II. The court instructed the jury that the maximum punishment that could be meted out to the defendant, if he was guilty, was a fine of $250 and imprisonment for not exceeding twelve months, and refused to read to them that portion of the statute which works a forfeiture of the dram-shop license in case of conviction. A fine of $50 in addition to the forfeiture of the license is, in fact, the maximum punishment for this offense. (/&., 1859 ) The jury assessed the fine at $60. The court remitted $10 of the amount, and entered judgment for the maximum fine, $50.
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This was not reversible error. [1] The statute authorizes the remitter in such cases. (Mans. Dig., sec. 8309.) [2] The instruction of the court as to the maximum punishment was erroneous, but as the fine imposed is no greater than that authorized by the statute, the defendant was not prejudiced by it. (Dudney v. State, 22 Ark., 251.) [3] The forfeiture of the license is a consequence of conviction. It is not a part of the penalty to be assessed by the jury. They have no discretion about it, and it was not error in the court to refuse to charge them in regard to it.
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III. The license that was declared forfeited by the judgment of the court bad been issued, not to tbe defendant himself, but to one Thatcher. The testimony tended to show that the defendant was the real party in interest and the active proprietor of the dram-shop, and the verdict of the jury shows that they took that view of the matter The law deals with realities, and its administration is not deterred by shams and makeshifts. When the proof showed that Ballentine was the guilty dram-shop keeper, whether keeping for himself alone or in copartnership with Thatcher, it was proper to declare a forfeiture of the the license under which he operated, and it mattered notin whose name it was written. (See Brockway v. State, 36 Ark., 629.) As to the effect of this judgment on Thatcher’s rights under the license, the case will be determined when it arises.
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IV. It is argued further that it is not shown by proof that the particular game charged in the indictment was played in the house. The answer to this is that the bill of exceptions purports to set forth the effect of the testimony without giving the details of the evidence. The narrative, in one instance, runs thus: “That Frank Blair, who ran the games in the saloon building, stated that he obtained permission ” from Ballentine, etc. This is in'the statement of the substance of the proof for the prosecution. The presumption is that thegames referred to include the games described in the indictment.
But when the bill of exceptions brings the substance merely of the evidence upon the record, it is looked to by this court only to explain the bearing of the rulings or instructions that are challenged. "When a defect of proof is the ground of exception, all the evidence in anywise connected with the supposed defect must be set out. (See Rule 18 of this court, 44 Ark., p. IS.) Doubtless if Blair’s testimony had been set forth in full, it would have showed that the game described in the indictment was one of the games played. In any event it devolved upon the appellant to show error affirmatively, or the judgment stands.
There was abundance of other evidence from which the jury could infer the defendant’s guilty knowledge of the gaming.
There is no error shown by the record, and the judgment is affirmed.