(after stating the facts). Each of the indictments charges appellant with keeping- and exhibiting a certain gambling device, naming it, in violation of section 1732 of Kirby’s Digest, which reads as follows:
“ Every person who shall set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., O. E., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description, although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than one hundred dollars, and may be imprisoned any length of time, not less than thirty days nor more than one year. ”
It is contended by appellant that, having set up and exhibited each and all of the gambling devices, with the exhibition of which he was separately charged in the different indictments at the same time and place, he was guilty of but one offense, and that, having pleaded guilty and been convicted under one of said indictments, the court erred in denying his plea of former conviction as a bar to bis prosecution upon the other chaiges.
The first seven sections of the statute against gaming (sections 1732-8, Kirby’s Digest) relate exclusively to the banking games, whether called by the names specified or by any new name or device, and the court, construing the fourth section (1735) which denounces a penalty against the owner or occupant of any house who “shall knowingly permit or suffer any of the before mentioned tables, games or banks to be carried on or exhibited in their house,” etc., held: “The offense prohibited in the fourth section is not that of keeping a common gaming house, which implies frequency or continuance of the act permitted, but the offense of the owner or occupant is complete if he suffer a single act of the exhibition of any of the games designed to be so prohibited. * * * Our opinion is, that the offense designed to be punished by the fourth section is the suffering or permitting to be carried on or exhibited in any house, etc., by the owner or occupant thereof, any of the banking games, gaming tables or devices, prohibited in the first section.” Stith v. State, 13 Ark. 680. These games are usually exhibited by persons whose occupation it is to prey upon the community, and who are therefore particularly obnoxious to the laws, and the exhibition of the games is commonly understood to be a challenge to all persons to bet against them.
The statute denounces a penalty against “every person who shall set up, keep or exhibit any gaming table or gambling device,” etc., and is intended to prohibit the setting up and exhibition of either, any one and all of said devices, rather than the business of operating a gambling house, and is violated by every one who sets up, keeps or exhibits any of said games, without regard to whether more than one is exhibited at the same, time and place.
Having interposed a plea of former conviction as a bai to his prosecution, the burden of proof was upon appellant to show that the offense charged in the indictments in these eases was the same as that for which he had been previously convicted. Emerson v. State, 43 Ark. 372; Grayson v. State, 92 Ark. 413; Sparks v. State, 88 Ark. 522. “The established rule is that the former conviction is a bar to a subsequent indictment for any offense of which the defendant might have been convicted under the indictment and testimony in the first case.” State v. Nunnelly, 43 Ark. 68; State v. Lismore, 94 Ark. 21.
Mr. Bishop, speaking of the plea of autrejois convict, says: “The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction. When there could, the second can not be maintained; when there could not, it can be. ”
Applying this test and rule, it will not be contended tnat proof that appellant exhibited a gambling device called roulette would support an indictment where he was charged only with exhibiting a gambling device called faro bank; and, since he could not have been convicted under either of the indictments in these cases upon proof of the exhibition of the gambling device described in the indictment upon which he was convicted, the evidence of the record in that case introduced by him did not tend to support his plea of former conviction, and it was properly denied.
There is no question in this case of duplicity in the indictment, or a charge of more than one offense, since appellant is only charged in each of said indictments with the exhibition of one gambling device, and the authorities relating to such matters are of little weight in determining the question under consideration here.
Appellant, having failed to maintain his said plea of former conviction, by proving conviction upon a charge of exhibiting a gambling device entirely different from each of the ones with the exhibition of which he was separately charged in these cases, and for the exhibition of which he could not have been convicted upon proof of setting up either of the devices mentioned in these indictments, and having admitted the exhibition of each of the gambling devices as charged in the several indictments, he was properly adjudged guilty upon the trial of each, without regard to whether all of said devices were exhibited at the same time and place. Grayson v. State, 92 Ark. 413.
The judgment is affirmed.
Hart and Frauenthal, JJ., dissent.