31 W. Va. 380 | W. Va. | 1888
At the January term, 1888, of the Circuit Court of Wetzel county, an indictment was found against Amos Brast, charging that in August, 1887, the said “Brast, in the room of Amos Brast, in the Brast House, in the town of New Martinsville, Wetzel county, W. Va., did unlawfully play a game at cards at the-time and place aforesaid, aud the said Amos Brast’s room, as aforesaid, was, at the time aforesaid, a public place,” etc. The case was tried on the issue of not guilty, the jury returned a verdict of guilty, and thereupon the defendant moved the court to set aside the verdict upon the ground that it was contrary to the law and the evidence, and he also moved in ar/est of judgment, both of which motions the Court overruled, and, having fixed his fine at $10.00, entered judgment against him for that sum, and the costs. At the instance of the defendant, the court certified all the facts proved on the trial, and the defendant obtained this writ of error.
The material facts proved are as follows: The defendant is a son of the proprietor of the tavern known as the “ Brast House,” in the town of New Martinsville, in Wetzel county, and occupied a room in the building connected with, and, to some extent, used as a part of said tavern, for the accommodation of guests; that the defendant took possession of this room in May, 1887, and used it as his own lodging-room, and boarded with his father at the tavern ; that he and his brother were engaged in the lumber business, and kept their books in said room, and both had keys and access to the room ; that the defendant kept the room locked when absent from it, and carried the key; that the servants of the house attended to the room for the defendant; that the building of which this room is part is about eight feet from the main tavern, and connected with it by a platform between the hall-doors of the second story; that one of the doors of this room opened into other rooms of the annex, which were used for guests of the tavern, and there was another door which led down-stairs directly to the street; that in August, 1887, on Sunday, about 1 o’clock in the day, the prosecuting witness, in walking along the alley near the building heard loud talking in this room; that she was seeking for her husband, and found him in the room with the defendant and others engaged in a game of poker, and that money and poker chips were on the table.; that to prevent egress from the other rooms of the building to that of the defendant, a bed was placed across and against the door of the defendant’s room, and said door was kept locked and bolted from the inside of the defendant’s room ; and that this room is on the second story of the building. These facts being proved, the question is, do they warrant a verdict of guilty under this indictment ?
The statute provides that if any person, “ at any hotel or tavern, or other public place, or jdace of public resort, play at any game, except bowls, chess,” etc., he shall be fined, etc. Section 4, ch. 151, Code. The indictment here is for
The question as to what is a public place, within the meaning and purpose of statutes identical or similar in effect to the one under consideration, has been frequently passed upon by the courts of Yirginia. In Windsor's Case, 4 Leigh 680, the court set aside the.verdict and judgment of conviction under an indictment for unlawful gaming “at a public place, to-wit, at the store-house of G. Huddleston & Co.,” because the proof was insufficient to establish that said store-house was a public place. In the opinion the court says: “To convict the defendant, it was incumbent on the Commonwealth to prove that the play occurred at the store of Huddleston & Co., and that it was a public place at the time of the playing. It was so alleged in the indictment. Proof that Huddleston & Co.’s house was a store-house at which goods were vended, would establish that it was a public place so long as it was kept open for that purpose. But when the business of the day was ended, the store-house was lona tide shut up, the doors closed, it ceased prima facie to be a public place; and, in the absence of other proof, it would not be regarded as a public place, but as a private one.”
In Vandines Case, 6 Grat. 689, under an indictment for gaming at a public place, the jury found a special verdict as follows: “ The county of Jackson owned a tract of about 80 acres of land for the purpose of maintaining the poor of the
In Feazle's Case, 8 Grat. 585, it was held that “ a storehouse in a village, late at night, after persons cease to come to the store to purchase goods, and the door is locked, is not a public place within the meaning of the statute against gaming.” In Bishop’s Case, 13 Grat. 785, the defendant was indicted for playing cards at or near Old Shop meetinghouse. Judgé Lee, in delivering the opinion of the court, says : “ The name of the place does not ex vi termini import that it was at all times a public place. Although while the public might be assembled there for religious worship or other purpose", or while so assembling, or afterwards dispersing, it might well be a public place, within the meaning of the statute, yet at all other times it might be strictly a private place, the playing at which would not be a violation of law.
In Purcell's Case, 14 Grat. 679, the court held that “ a room in an out-house within the inclosure of a tavern lot, which had at one time been used in connection with the tavern, and the room over which is still so used, having been
The general principle to be deduced from these cases seems to be that the place at which the gaming occurs must be public at the time the playing takes place. It must be a place to which people are at the time privileged to resort without an invitation. There must also be a publicity about it, for this statute is not intended to reach concealed gambling in a private place. There are other provisions of the statute made for the punishment of such cases. The provision is not intended to suppress gambling as a vice per se, but to prevent it from becoming an annoyance and a nuisance to the public, or persons not participating in it. Bish. St. Or. § 298.
Applying this principle to the facts in this case, 1 am of opinion that the verdict of the jury is plainly unwarranted by the facts proved, and that the Circuit Court erred in not setting it aside. The judgment of said court is therefore reversed, the verdict set aside, and a new trial awarded.
Revebsbd. Remanded.