| Mass. | May 15, 1894
The defendants, five in number, have been convicted, under the Pub. Sts. c. 99, § 10, as amended by the St. of 1887, c. 448, § 2, of being present in a common gaming-house when gaming implements were found there. At their trial they asked for three instructions. 1. That there was no evidence that the building described in the complaint was unlawfully used
1. There was abundant evidence that the building in question was a common gaming-house. It was protected by a thick oak door with brass trimmings, which had on the inside an oak bar which fitted into staples attached to the door-case on each side of the door. The officers who visited the building were unable to gain admittance by knocking. They then attempted to break down the door with a sledge-hammer, but failed. Some one inside pushed aside a slide covering a hole in the door and looked out. After some delay, one of the defendants opened the door, and the defendants were found in a room of the building, walking about. From this room was a stairway, enclosed .in a solid board partition, leading to a room above. Between the ceiling of the lower room and the floor of the room above were found concealed gaming implements, including cards and a deal box used in playing faro. Access to the place of concealment was obtained by removing the riser of the top step of the stairway, which was fastened by a catch. Some one was heard running up this stairway while the officers were trying to enter the building, and after the officers entered one of the defendants came down this stairway. There was also evidence that faro is a game played for money, and that it is played with cards similar to those found. See Commonwealth v. Adams, 160 Mass. 310" court="Mass." date_filed="1894-01-03" href="https://app.midpage.ai/document/commonwealth-v-adams-6424783?utm_source=webapp" opinion_id="6424783">160 Mass. 310.
2. There can be no doubt at the present day that the keeping of a common gaming-house is an indictable offence at common law. The King v. Rogier, 2 Dowl. & Ry. 431, 1 B. & C. 272. The King v. Taylor, 3 B. & C. 502. Jenks v. Turpin, 13 Q. B. D. 505, 514, 515. But this was once doubted, and it is perhaps for this reason that the statute now before us, which was first passed in 1834, (St. 1834, c. 172,) and the statute in regard to nuisances, (Pub. Sts. c. 101, § 6,) which goes back to 1855, (St. 1855, c. 405, § 1,) instead of declaring a common gaming-house to be a common nuisance, make it necessary to prove that the building is resorted to for the purpose of gaming. But there is
In the case at bar we cannot say, as matter of law, that there was no evidence which would have warranted the jury in finding that persons resorted to the house for the purpose of gaming for money, although there was no direct evidence in regard to the house or its frequenters previously to the night when the defendants were arrested.
3. The statute authorizes the arrest of “ all persons present, whether engaged in playing or not, if the implements of gaming are found in said place.” The word “place” clearly refers to the “ house or building ” which the warrant authorizes the officers to enter, and is not confined to the room where such persons are found when arrested. Exceptions overruled.