7 Ind. 654 | Ind. | 1856
This was a prosecution for gaming, founded on section 28, 2 R. S., 435, which provides that “ every person who shall, by playing or betting at or upon any game or wager whatever, either lose or win any article of value, shall be fined,” &c. The information charges that one Groff,> on, &c., at, &c., owned and kept a ten pin alley for hire, and .that Mount, the defendant, and one Miller then and there hired of Groff the use of the alley, to play one game of ten pins, for which they agreed to pay him 10 cents; and that in pursuance of said hiring, Mount and Miller then and there played said game of ten pins, by which Mount won of Miller 5 cents, the half of the hire o'f said alley, by then and there unlawfully betting and wagering with him the said 5 cents on the result of the game, contrary, &c. Motion to quash overruled. Plea, not guilty. Finding for the state. New trial refused, and judgment.
By agreement, the affidavit filed with the information was given in evidence on the trial, and was all the evidence in the cause. It shows that Mount, on the 1st of June, 1855, at Fayette county, rolled at a game of ten pins with Miller, on the ten pin alley kept by Groff, on which he, Groff, charged 5 cents for each person rolling thereon, and by previous agreement, the one failing to knock the largest number of pins, was to pay Groff the liability of the other, for the use of the alley, such liability being 5 cents; that Miller, failing to knock the largest number of pins, the said Mount then and there unlawfully won of him, Miller, the value of 5 cents, the same being his, Mount’s, liability to Groff for the use of the alley; which liability was, according to the rules of gaming on said alley, then and there paid by Miller to Groff.
For the reversal of this judgment, the appellant makes the following points:
2. It is said that “the proofs do not support the information; that the averment is a winning of 5 cents, the half hire of the alley, while the evidence shows that the defendant won the value of 5 cents, the same being his' liability to Groff.” There is nothing in this objection. The proof is that the defendant won his liability to Groff, which was before shown to be 5 cents for the use of the alley. There is no substantial variance between the allegation and the proofs.
3. It is insisted that the information does not show a case within the statute. To constitute unlawful gaming, there must be a game played, and upon its result some article of value must be lost and won. Here was such game, and the only point of inquiry is, was any article of
The judgment is affirmed with costs.