This was a prosecution for keeping a gaming house. The substantial part of the indictment was as follows :
“The grand jury of Sullivan county, in the State of Indiana, * * * * * on their oath, present that one Joseph Norman and one Charles Padgett, late of said county, on the 24th day of January, A. D. 1879, and on divei’s other days between said day and the day of making this presentment, at said county and State aforesaid, did then and there unlawfully keep a certain building, arbor, booth, shed and tenement, to be used for gaming, and then and there unlawfully suffered Stephen D. Price, Elias Crance, Stephen Dooley and divers other persons to the grand jurors unknown, to play at a certain game of cards called ‘poker,’ for money and other articles of value.”
The defendants moved to quash the indictment, but their motion was not sustained. A jury found them guilty as charged, and assessed a fine against them in the sum of *47fifty dollars. After overruling a motion for a new trial, the court rendered judgment against the defendants, upon the verdict. Errors are assigned upon the overruling of the motion to quash the indictment, and upon the refusal of the court to grant a new trial.
The sufficiency of the indictment is, we think, fully sustained by the case of Crawford v. The State, 33 Ind. 304. We, therefore, see no error in the refusal of the court to quash the indictment.
Upon the trial, Stephen D. Price testified, on behalf of the State, “that he had played poker for money with one Elias Crance and one Stephen Dooley, in an up-stairs room over the saloon of said defendant,” within two years previous to the time of the trial; that “the room was over the billiard room, and is used for a bedroom and wardrobe ;” that “there was but one table in the room;” that “Stephen Dooley went up there to write a letter, and I followed him up there; then Crance came up ; don’t think defendants saw me go up. The table had books and stationery on it when we went up there ; we took them off;” that “there was but one or two chairs in that room ; we used two old lemon boxes to sit on to play ; we had our own cards to play with ; there were no cards on or about the table we played on; we did not ask permission of the defendants to go up there to play that time ; I have asked permission to go up there to play, but have always been refused.”
Elias Crance testified, “that he had played poker there with Stephen D. Price and Stephen Dooley ; that he had played for money; that he had played poker there for money within the last two years, as much as a half' dozeu times;” that “I did not get permission from auy one to go up there ; I kept my clothes there, part of the time, and had a key to go and come when I pleased ;” that “some *48of the players furnished the cards ; I clerked some for defendants ; they often refused to allow any gambling about their house ; I never knew them to give permission.”
Stephen Dooley, in his testimony, said : “Rever got permission to go up there to play cards, the times when I played with Crance and Pricé ; I went up there under pretence to write a letter. I have asked permission to play there, but was always refused.”
One F. M. Davison was also a witness on behalf of the State, and testified to having once played cards for money, in the room referred to by the-other witnesses, and said : “Did' not get permission of the defendants to go up there : I went to the door at the top of the stairs ; I knocked, and Elias Crance let me in. * * •* Don’t know that the defendants knew we were playing.”
One Johnson, another witness-for the State, on his cross-examination, said : “ I am acquainted with the location of the rooms in said building. The first room we go in is a billiard-room. There is one door in the center of the west wall of this room, which leads into the bar-room. There is a stairway situated in the south corner of the billiard-room, which leads up to the room where they were playing cards. There is one door in the south end of the billiard-room ; also one door in the south-east end. A person behind the bar in the bar-room could not see a person go up stairs. I have often heard defendants refuse to allow any gambling in their saloon or about the premises.”
The above embraces substantially, and almost literally, all the evidence given by the State, touching the supposed knowledge of the defendants of the gaming testified to by the several witnesses introduced by the State.
In a case like this, the fact that the defendant kept or suffered his house to be used for gaming may be proved by circumstances, but the proof must at least show that *49he had knowledge that his house was resorted to for gaming. The State v. Currier, 23 Me. 43; The State v. Cooster, 10 Iowa, 453; Moore Crim. Law, sec. 808.
. In this case, the evidence, .as we construe it, did not either show or fairly tend to show, that the defendants had any knowledge of the gaming testified to by the witnesses on the part oí the State. Nor was this failure of proof m any manner supplied by the testimony given on behalf of' the defendants.
All the circumstances would seem to indicate that the room referred to bjr the witnesses had not been especially kept for gaming purposes, and we see nothing in the evidence from which the assent of the defendants to the gaming charged could have been reasonably implied. We are, therefore, of the opinion that the court below erred in overruling the defendants’ motion for a new trial.
The judgment is reversed, and the cause is remanded for a new trial.