Dudney v. StateDudney v. State
- Reporters:
- Before:
- Compton
delivered the opinion of the Court.
Thе appellant was convicted in the court below, and fined fifty dollars, for keeping а common gaming house; a motion for a nеw trial‘having been made and overruled, he аppealed to this court.
The indictment сharges that the appellant unlawfully did keеp and maintain a certain common gaming house, and unlawfully and wilfully did cause and procure divers idle and evil disposed persons to frequent said house and to play together at certain unlawful games at cards cаlled pocre, upon which money was bet, ete. It was proven on the trial that divers persons had frequently met together, and engаged in card playing at the house of the аppellant; but it was not shown in evidence that they played pocre; and this is one of the grounds relied on by the appellant in this сourt, for a reversal of the judgment.
It was not nеcessai‘y to charge in the indictment, that any particular game was played, but having sо charged, the Slate, according to the previous decisions of this court, was bound to prove the charge as made. Hancy vs. The State 4 Eng. 193; Shover vs. The State 5 Eng. 259. The principle decided in these cases is decisivе of the question now presented ; and in Vandеrworker vs. The State 13 Ark. 702, which was an indictment for keeping a common gaming house, it was said: “ In thе allegation of what was transacted” (at the gaming house) “ it would not be essential to specify what particular games the visitors еngaged in while remaining there. The common law adjudges such an establishment to be per se a common nuisance, and in proceeding against any given house as a common nuisance, or against the keeper оf it, it can only be necessary to allege such facts as will show it such in. the eye of the lаw, and all particularity beyond that would be unnеcessary and encumber the proseсution.”
The highest fine which the la w imposes for the offence charged in the indictment is one hundred dollai’sjand consequently it was error tо instruct the jury, that if they found the appellant guilty, they might assess his fine at any sum not exceeding two hundred and fifty dollars; but the jury having fined the appellant fifty dollars only, he was not injured by the error, and cannot complain.
The judgment, however, must be reversed, for the error first above indicated, and the cause remanded.