50 Ind. 178 | Ind. | 1875
Indictment against the appellant, charging that he, on, etc., at, etc., “ did then and there unlawfully keep and suffer to be kept a certain building, room, and tenement, 'then and there owned and occupied by the said Michael Carr as his house, room, and tenement, to be used for gaming; and the said Michael Carr did then and there unlawfully keep and suffer to be kept in said building, room, and tenement a certain gaming apparatus, called a billiard table, and did then and there unlawfully suffer and permit John F. Hawkins, John Cosgrove, Michael Carr, Joseph Austill, Eli Samden, Napoleon Carifel, Joseph Gravel, William H. Ennis, and divers other persons to the grand jurors unknown,, to then and there, and on divers other days between said day and the day of making this presentment, to play and bet at a certain game called billiards, played upon said billiard table, and to bet and wager upon the result of the games so played the hire of said billiard table, cigars, beer, whiskey, and divers other articles of value, contrary,” etc.
A motion to quash the indictment was overruled, and the defendant excepted. Trial by jury, verdict of guilty, and judgment, the defendant having unsuccessfully moved for a new trial.
The overruling of the motion to quash is assigned for error.
It is urged that the indictment is double, charging the keeping of a gaming house within sec. 29 of the act defining misydemeanors, etc., and the keeping of a billiard table within the
On the trial, it was proved to be the rule and general understanding that when persons played billiards on the table, the person losing the game paid for the use of the table. It was proved that persons played, and that the loser paid for the use of the table twenty or twenty-five cents. There was no evidence whatever that any one had ever played for “ cigars,” “ beer,” “ whiskey,” or “ other articles of value.”
We are of opinion, therefore, that on the evidence the appellant was entitled to a new trial. The only charge sustained by the evidence is, that persons were permitted to play and bet and wager upon the result of the games “the hire of said billiard table.” The evidence wholly fails to establish the other parts of the charge in the indictment, viz., that bets and wagers were permitted of cigars, beer, whiskey, etc. To constitute gambling, some “ article of value ” must be lost or won, and the penalty prescribed is a fine of not less than the value, nor more than twice the value, of the article lost or won. 2 G. & H. 465, sec. 28. In a prosecution for gambling, the value of the article lost or won must be stated. Long v. The State, 13 Ind. 566. The allegation that the appellant permitted persons to bet and wager “ the. hire of' said billiard table ” is too indefinite and uncertain to constitute a valid charge, and had the indictment contained no other charge, it should have been quashed. Looking to the indictment alone, we cannot say that “ the hire of said billiard table ” was of any value whatever, for we are not advised of what the hire consisted, whether of money, patronage of the establishment, or other thing. The word “ hire ” signifies a reward, recompense for the use of a thing; and this is the sense in which it seems to have been used in this instance. But the indictment
The judgment below is reversed, and the cause remanded for a new trial.