The indictment contained two counts. The first charged that Hamilton, at and in said county of Marion, in the State of Indiana, on, &c., was engaged in-the habit and practice of gaming, and did then and there get his livelihood by following, practicing and playing a certain game, &c., and was then and there, in manner and form aforesaid, a professional gambler.
The second count charged that on, &c., at, &c., the defendant was found wandering about from place to place in the hahit and practice of gambling, &c., and was then and there, in manner and form aforesaid, a professional gambler.
S. A. Colley and J. C. BuffMn, for appellant. 2). 2?. Williamson, Attorney General, for the State.Upon a motion to quash, the indictment, the same question is presented that has already been ruled upon in the cases of Bowe v. The State, ante, p. 415, and Bruce v. The State, ante p. 424. Eor the reasons therein given, the court committed no error in overruling the motion. The evidence for the State was the same as in the cases cited, except that upon the person of the defendant herein nothing was found tending to criminate him except some dice, and he was not charged with using them. The defendant had a ticket for Terre Haute in his possession, and was about leaving the city on the cars. There was no proof that the defendant was a professional gambler, or had, at any time or place, gambled. The finding should have been for the defendant.
The judgment is reversed, and the cause remanded for further proceedings.
Gregory, J., dissented.