State v. Currier, 23 Me. 43

State v. Currier

23 Me. 43 | Me. | 1843

The opinion of the Court was drawn up by

Shepley J.

The indictment is made a part of the case-It contains two counts and in each the only offence set forth is that the defendant “ kept a bowling alley, which was then and there resorted to for the purpose of gaming.” The statute, c. 35, $ 1; has provided for the punishment of two distinct offences. One for keeping a house, shop or other place, resorted to for the purpose of gaming ; and the other for per*45mitting a person to play at cards, dice, billiards, or other game for money or other things in any house, shop or place, under his control or care. A person may permit one to play at such games for money in a place under his control, and yet not keep a house or place resorted to for that purpose. So one may own and control a house or place resorted to for the purpose of gaming without being the keeper of the house or place in the sense of the law. For example, the owner of a house may take a lodger into an apartment, over which he continues to have the control, and such lodger may without his knowledge allow it to be resorted to for the purpose of gaming, and yet the owner, who has the control of such apartment and may displace the lodger at any moment, cannot be considered as the keeper of a place resorted to for the purpose of gaming. The owner of a house could not be considered as losing the control of it, if he should be absent from it for a few days, and another person without his consent should go into it, and occupy an apartment and allow others to resort to it with him for the purpose of gaming; and yet he could not be considered as the keeper of a house or place resorted to for the purpose of gaming. The bill of exceptions states, that “ the Judge instructed the jury, that if they should find, that the defendant owned and had control of a place resorted to for the purpose of gaming, their verdict should be for the government.” The testimony, to which these instructions were applied, is not stated : and the proposition contained in the instructions must be true under all circumstances, or it cannot be supported.

Exceptions sustained, a new trial granted,

and the case remanded to the District

Court for further proceedings.