31 Ky. 165 | Ky. Ct. App. | 1833
delivered the Opinion of the Court.
The case of West vs. The Commonwealth, (3 J. J. Mar. 641,) must be decisive of this case.
In that case, a judgment by default, on a scire facias upon a recognisance “for gaming,” was reversed, because “ gaming,” as described in the scire facias, was not an indictable offence.
In this case, the scire facias describes the recognisance as requiring an appearance to answer “ an indictment for gaming, by setting up and keeping a faro bank, upon which money was bet and won and lost.”
The charge, as thus described, would be indictable. But West having craved oyer of the recognisance, and demurred, a material variance between the scire facias and the recognisance, is disclosed. The latter requires an appearance to answer a charge of “ gaming” simply. As, therefore, “gaming” is not, of itself and alone, an indictable offence, the recognisance cannot be the foundation of a judgment, and, therefore, according to the principle decided in 3 J. J. Mar. (supra,) the demurrer to the scire jfacias ivas properly sustained.
Judgment affirmed.