Lord v. State, 16 N.H. 325

16 N.H. 325 | Superior Court of New Hampshire | 1844

Gilchrist, J.

The instructions to the jury to which the exceptions of the defendant relate, were in substance, 1. That keeping a common gaming-house is an offence against the laws of the State. 2. That keeping a house in which cards or dominos are habitually played for something to eat and drink in such house, amounts to the offence. 3. That it was unnecessary to prove that the persons frequenting the house are evil disposed persons, and otherwise of the character described in the indictment, or to prove specific acts of “ cursing, swearing, quarrelling, and drinking,” alleged. 4. That the jury were bound to regard the instructions of the court as to the law, as proceeding from the source constituted to declare it, and as their best guide.

There are many authorities both ancient and modern which establish beyond controversy that keeping a common gaming-house was an indictable offence at common law. Roscoe’s Grim. Ev. 743; Rex v. Higginson, 2 Burrows 1232; Rex v. Dixon, 10 Mod. 336; The King v. Rogier and Humphrey, 1 Barnw. & Cresw. 272. The point was fully considered upon argument in the last named case, and decided in conformity with the uniform current of authorities in the common law.

That the common law and the English Statutes in amendment of it, so far as they were applicable to our institutions and the circumstances of the country, were in force here upon the organization of the Provincial Government, and that they have been continued in force by the constitution, so far as they are not repugnant to that instrument, until altered or repealed by the legislature, was a jloint considered and decided in The State v. Rollins, 8 N. H. 550; and we see no ground for drawing in question the correctness of that decision. The necessary conclusion therefore is, that the instructions of the court upon the first point were right.

2. A common gaming-house is indictable as a nuisance, and is such, not because a particular description of punishable offences are commonly committed within its walls, but “because.they are temptations to idleness and because they are apt to draw together great numbers of disorderly persons.” Hawk. Pl. Cr., Book 1, ch. 75, sec. 6. These mischiefs are quite as likely to result from the kind of gaming described in the instructions of the court, as from gaming for money whether in large sums or small. Each form of the vice might afford peculiar attractions for its appropriate class of idlers, and give occasion for its appropriate train of social disorders. But each falls apparently ■within the description of gaming, and tends directly to the evil consequences referred to. It is therefore wholly immaterial that the defendant adduces authorities to show that a single act of playing with cards or dominos for meat or drink is not an offence at law. We think that the jury were properly instructed' that the offence was proved, by evidence showing that cards and dominos were habitually played in the house for the purposes described.

3. The offence described in the indictment is that of keeping a common gaming-house, and it has frequently been said by good authorities, that it is sufficient if the indictment allege that generally, and no more, (Holroyd, J., in The King v. Rogier a., 1 Barnw. & Cresw. 273; Roscoe’s Crim. Ev. 743) although it is usual to charge the defendant with procuring persons of evil fame and disposition to assemble there, and to practice the various vices that are apt to be indulged in at such resorts. But no case is found in which these matters of description have been held to be material. Indeed the question has been, whether the government should be permitted in proof of a general charge of keeping a common gaming-house, or the like, to give in evidence particular acts. Clark v. Periam, 2 Atk. 339; J. Anson v. Stewart, 1 T. R. 752-4; Roseoe’s Crim. Ev. 744.

Those authorities clearly show that it is unnecessary to prove what persons in particular resort to the places complained of; of course any evidence that they were “ evil disposed persons, of evil name, fame, and conversation,” if necessary at all, must sometimes be loose and unsatisfactory.

Wore the law as is contended by the defendant, prosecutions for keeping a common gaming-house, a common house of prostitution, or an inn accustomed to harbor thieves and the like, would necessarily resolve themselves into collateral inquiries of a scandalous nature, affecting parties strangers to the record, and into imputations of crimes to those who have no means of defending themselves.

We are therefore of the opinion that all such matters as the characters and purposes of the visitors to the house, and the particular kinds or modes of gaming pursued there, as well as the existence of the vices of swearing, tippling, and their kindred evils, ordinarily attendant upon the practices which stamp the house with its indictable character, are merely descriptive and immaterial to the essence of the offence charged. It was unnecessary to set them up in the indictment, and equally unnecessary to prove them.

4. The j ury were also charged to take the instructions of the court as to the law of the case, as their legitimate and safest guide in the discharge of their duty of rendering a verdict according to law. This the defendant says was erroneous for the reason that the jury are themselves judges of the law in criminal cases. If that be so, there was little harm in the instruction ; nor can the supposed error afford obvious ground for the exception. But the law has been held otherwise in this State, upon due consideration, and the ruling of the court was in conformity with it. Pierce v. The State, 13 N. H. 536.

We are therefore of the opinion that the instructions of the court to which the exceptions relate afford no cause for setting aside the verdict.

It is said on motion in arrest of judgment, that the verdict of the jury did not cover the whole matter submitted. The custom in criminal cases is for the jury to render their verdict of guilty or not guilty orally in open court, and a record to be made of it. That course was pursued in this case. The written verdict which the foreman undertook to make, was irregular and was correctly rejected by the court. The verdict of guilty related to the offence charged in the bill.

We are therefore of opinion that the motion must be denied and that there must be

Judgment on the verdict.