Marston v. Commonwealth

Judge Stites

delivered the opinion of the court.

Marston was indicted for permitting games, at which money and property was won and lost, to be played in his house, in violation of the Revised Statutes, (chap. 42, § 10.) A demurrer to the indictment was overruled, and upon trial he was found guilty, and his fine assessed by the jury at two hundred dollars, for which sum a judgment was rendered against him.

A new trial was moved upon the following grounds: 1st. That the court erred in granting, and in refusing, instructions to the jury. And 2d. That the verdict was contrary to law and the evidence. This motion was overruled and Marston has appealed.

The grounds for a new trial below are relied on for reversal here; and it is also complained that the circuit court erred in overruling the demurrer to the indictment.

With regard to the action of the circuit court in overruling the demurrer it is sufficient to say, that the Criminal Code, (sec. 349,) provides that a judgment shall not be reversed for “an error in not setting ‘ aside an indictment or in overruling a demurrer ‘ thereto.”

2. A person knowingly permitting the games of “euchre,” ‘rounce,’ “Kossuth,” or other game at which liquor, cigars, ‘treats,’ or money or property, however small in value, are won and lost, to be played in his coffeehouse, subjects himself to the penalty prescribed by Rev. Stat. chap. 42, sec. 10, page 390.

The proof conduces very clearly to show that appellant, who kept a coffee-house or liquor shop, permitted games of cards and dice, such as “euchre,” “rounce,” and “Kossuth,” at which liquor and cigars or “treats” were won and lost, to be played in his house; indeed, it appears to have been aplace of resort for that purpose.

The statute neither discriminates as to the amount of money, nor the value of property, won or lost, but declares that “whoever shall suffer any game what- ‘ ever, at which money or property is won or lost, tobe ‘ played in a house, boat, or float, or'on premises under his control, shall be fined from two hundred to five ‘ hundred dollars for each offense.” The obvious intent of the provision was to suppress a pernicious and ruinous vice, by prohibiting gambling houses of any description, whether upon a large or small-scale. And the court properly instructed the jury, that if the defendant knowingly permitted games at which money or property was won or lost to be played in his house; and money, however small in amount, or property, however small in value, was, with his knowledge and permission, won or lost at such games, that he came within the inhibitions of the statute.

The instruction asked for by appellant, containing the converse of the instruction granted, was, according to the view already expressed, obviously erroneous, and properly refused.

The case of Ritte vs. The Commonwealth, (June term, 1857,) presented altogether a different question, and is not in point.

The inquiry in that case was, whether the bagatelle table or machine used by those who frequented the house, came within the description of tables, machines, or contrivances denounced in the 6th section of the same chapter, supra,- under which Ritte was indicted, and not as to the amount of money or value of property won or lost necessary to constitute gambling.

*492We perceive no error in the record of which the defendant can rightfully complain, and the judgment must stand.

Judgment affirmed.