17 Tenn. 184 | Tenn. | 1836
delivered the opinion of the court.
The first enquiry arising upon this record is, did the circuit court err on the trial, in putting to the prisoner as competent jurors, and imposing upon him the necessity of accepting of challenging, peremptorily, Joseph Link, Charles J. F. Wharton, Anderson Tucker and Matthew Barrow, all of whom stated that they had formed opinions of the guilt or innocence of the prisoner, some of them, that they had formed and expressed such opinión in each instance upon public rumor, and in one instance, that of Wharton, in addition to public rumor, upon a detail of the circumstances from persons, however, Who did not profess to have been eye witnesses of the transaction. The jury having in their hands the life or liberty of the prisoner, on the one side, and the duty of vindicating the violated law, on the other, it has always been deemed of high importance that they should as far as possible, stand indifferent between the supposed criminal and the State. Amid the crowded population and busy pursuits of a community like England, divided too, into classes, which take, perhaps, no very lively interest in each other’s fate or concerns; and it may be added, where the frequency of crime deprives it of the power to produce much public excitement, it may not be very difficult, perhaps, to find a jury unaffected by rumor; but
This in substance, we believe has been the rule and course, with considerable uniformity, adopted and enforced within the State. In one of the instances excepted to, that of Wharton, the juror seems to have formed his opinion and belief, not upon rumor merely, but upon a detail of circumstances from persons in whom he seems to have confided, and we think he ought to have been rejected for cause. But the record does not show, that the prisoner exhausted liis list of peremptory challenges, and if he did not, and he elected a jury omni exception majoris, leaving peremptory challenges unexhausted, we are of opinion that it does not constitute an error for rvhioh we ought to reverse the judgement,
2. Can aiders and abetters, present and assisting in the dealing at faro, be found guilty of this statutory felony, or can he only be guilty within the meaning of the statute, who does the manual act of dealing. It is argued by the counsel for the prisoner, that this offence of dealing at faro, and of course, also, those of playing with thimble, and exhibiting the grand-mo-
3. In the charge to the jury, the judge said, “that the court was to be the judge of the law, and the jury exclusively the judges of matters of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and that the jury were not die exclusive judges of the law.” This point of the charge is excepted to, and may perhaps be wanting in precision. It might bo inferred from it, that the counsel for the prisoner, had urged upon the trial, that the jury in criminal cases, arc the exclusive judges of the law. If this were contended for in a sense, which implied that it was not the duty and office of the judge so to lay down and expound the law to the jury, and highly proper in them to receive irem the court the law, with attention, wih
4. The court charged the jury, that if the game proved was not substantially different from, and was a species of faro, hut differing in some particulars only, then in contemplation of law, it would be faro, if it was within the mischief of the act under which he was indicted. This part of the charge is also, excepted to. It seems from the proof, that up to the end of the year 1827, a game was played with fifty-two cards, which was universally called faro, by gamblers and the public. Attheendof the year 1827, or in the year 1828, old faro was abandoned, or rather, some changes took place in it; some cards were subtracted, but the principle of the game remained the same, it was a stronger game in favor of the dealer, and against his adversary. It was called forty-eight, by some dealers and gamblers, but most generally by the public, as before, faro. This modification of the game, and attempt to change the name proceeded no doubt, from the act of 1827, having made those guilty of dealing faro, playing at thimbles, and exhibiting the grand-mother’s trick, subject (o pillory and infamy. And when the act of 1329, passed according to the proof in this case, the old game of faro with fifty-two cards had ceased to be played and forty-eight, or the new faro, commonly then known by the name of faro, was in existence, or more frequently used, invented no doubt, to elude the act of 1827. We think the charge of the court upon this point correct. If the principle of the game remained, and the game substantially continued the same, changes and modifications which did not materially alter the nature and character of the game, would not destroy its legal and statutory identity.
5; But the court further told the jury, “if the game of forty-eight, was substantially a different game from old faro, but was commonly called and well known by the name of faro, in this State, and at Nashville, at and before the finding the bill of indictment against McGowan, it would be faro, within the meaning of the law, if it was within the mischief, to remedy which the act was made.” This proposition in the charge is excepted to, and we think it clearly erroneous. If the charge had been upon this point, in the identical terms of the above
6. To this, another proposition intended to sustain it is annexed, in the charge of the court, namely, “that the acts of Assembly against gaming were to be construed remedially, and not strictly, and if the game of forty-eight was within the mischief and meaning of the act, it was sufficient to embrace this case.” That a statute creating a felony, shall have a remedial construction, is a principle no where established. An act of Assembly in 1824, directed that all statutes made for the suppression of gaming, should be remedially construed. Every species of gaming then punished by law, was considered and treated as a misdemeanor. But when faro, in 1827, was rendered infamous, and in 1829 a felony, will it be proper to apply to it, the rule of construction created by the act of 1824, and applicable only to misdemeanors. We think not clearly.
For the reasons herein stated, the judgment of the circuit cou;t will be reversed, and the cause be remanded to the circuit court to be there tried again.
Judgment reversed.