tion, deceit or unlawful device, or ill practice whatsoever, in playing at or with cards, dice, or any," etc. And it was a good indictment thereon to say that the defendant, at a time and place specified, by fraud, etc., as above, in playing at cards, to wit, stating the names of the game and of the person played with, did win and acquire to himself a large sum of money, to wit, saying how much [of the property of such person,'] etc., concluding as for a statutory misdemeanor.2

8886. The evidence.- Archbold' observes that, to sustain this indictment, the defendant must be shown to have won the money, or some part of it, by the averred fraud." And a "variance between the indictment and evidence as to the game played (if stated) would be fatal." Also, if the thing won is alleged to be bills of exchange, the proof must be so."

§ 887. Winning more than sum named.- The statute of Anne also made indictable those who should, "at any one time or sitting, win of any one or more person or persons whatsoever above the sum or value of ten pounds." And it was adequate in allegation to say that, at a specified time and place, the defendant, by playing at and with cards, at a game and with a person named, did win of him at one time and sitting above the sum and value of ten pounds, that is to say, the sum of sixty pounds [of his moneys,'] etc.3

§ 888. The evidence.- The exact sum won need not be proved as laid; it must simply be shown to be over ten pounds, for if less the offense was not committed. The winning is at

Mo. 630; Wheeler v. S., 42 Md. 563;
Batre v. S., 18 Ala. 119; Eubanks v.
S., 17 Ala. 181; Sheppard v. S., 1 Tex.
Ap. 304; Lindsey v. S., 48 Ala. 169;
King v. S., 3 Tex. Ap. 7; Com. v. Crup-
per, 3 Dana, 466; S. v. Ames, 10 Mo.
743; S. v. Kesslering, 12 Mo. 665; S.
v. Austin, 12 Mo. 576; Campbell v. S.,
2 Tex. Ap. 187; Rice v. S., 3 Kan. 141;
McGaffey v. S., 4 Tex. 156; Carr v. S.,
50 Ind. 178; S. v. Thomas, 50 Ind. 292;
Territory v. Copely, 1 New Mex. 571;
S. v. Anderson, 30 Ark. 131; Leath v.
Com., 32 Grat. 873; Moore v. S., 65
Ind. 213; Gibbons v. P., 33 IIL. 442.
1 Unnecessary. Reg. v. Moss, Dears.
& B. 104, 7 Cox, C. C. 200.

2 Archb. Crim. Pl. & Ev. (10th Lond. ed.) 657. Under the Illinois statute, Blemer v. P., 76 Ill. 265. See S. v. Stillwell, 16 Kan. 24.

3 Id. 657, 658.

4 See Rex v. Darley, 1 Stark. 359.
5 See Rex v. Rogier, 2 D. & R. 431,
1 B. & C. 272.

"Rex v. Darley, supra.

Probably unnecessary, as see ante, § 885, note.

8 Archb. Crim. PL. & Ev. (10th Lond. ed.) 658.

9 Crim. Pro., I,§ 4886; Rex v. Darley, 1 Stark. 359.

one sitting where the company does not separate, though the playing should not be continuous, as where dinner intervenes; "to lose ten pounds at one time," said Blackstone, J., is to lose it by a single stake or bet."1

8889. Permitting gaming by minors.-The statutes on this subject are not in uniform terms; and, whatever they may be, the indictment must duly cover them. It must set out, for example, that a game was played, and with whom, or allege an excuse for not naming him. And where the playing was charged to be with "persons" unknown, and it was proved to have been with one "person," the variance was adjudged fatal. If the statute is silent as to the defendant's knowledge of the minority, there need be neither allegation nor proof of such knowledge, while yet the want of it will in the proper circumstances constitute a good defense. The fact of minority must be proved as a part of the state's prima facie case, the "congregating" of minors where this is an element of the offense, and the same of all the rest.9

7

§ 890. Permitting or setting up gambling device or place. Where the thing forbidden is the permitting of a gambling device on one's premises, it is sufficient to charge that the defendant did there permit such device, specifying it; without alleging, what is not a necessary part of the offense, that there was gaming thereon. The indictment should as far specify the place as the statute does." The chief rule, in all

1 Bones v. Booth, 2 W. BL 1226. 2 Ante, § 877.

3 Zook v. S., 47 Ind. 463; Donniger v. S., 52 Ind. 326; Powell v. S., 62 Ind. 531; Ready v. S., 62 Ind. 1; Manheim v. S., 66 Ind. 65; Bond v. S., 52 Ind. 457; Conyers v. S., 50 Ga. 103, [15 Am. R. 686;] Green v. Com., 5 Bush, 327; S. v. Ward, 57 Ind. 537.

8 Powell v. S., supra.

9 Conyers v. S., supra; Bartender v. S., 51 Ind. 73; Squier v. S., 66 Ind. 317, 604; Hipes v. S., 73 Ind. 39.

10 S. v. Scaggs, 33 Mo. 92; S. v. Thomas, 50 Ind. 292. And see S. v. Whitworth, 8 Port. 434; [Keith v. S., 90 Ind. 89; Bobel v. P., 173 Ill. 19. An indictment for keeping a device

4 Zook v. S., supra; Alexander v. S., known as a "nickel in the slot ma48 Ind. 394.

5 Moore v. S., 65 Ind. 213.

6 Crim. Pro., I, §§ 522, 523; ante, S$ 675, 877; Com. v. Emmons, 98 Mass. 6.

7 Ante, § 482; Com. v. Emmons, supra.

chine," held sufficient without specifying the manner in which said device is operated. Kalshorn v. S. (Ga.), 23 S. E. R. 829.]

11 S. u. Mansker, 36 Tex. 364

cases of this sort, is to cover duly the statutory terms.1 And the proofs must sustain all the essential allegations.2

§ 891. Permitting gaming. The indictment for this form. of the offense is substantially the same as for the last. The statutory terms must be duly and formally covered." And the proofs must establish the essential allegations.*

892. Permitting gambling table to be exhibited. An indictment for this offense, if it covers the statutory terms, is good when it says that, at a time and place stated, the defendant, being the owner of, etc., specifying the building, etc., did then and there unlawfully, etc., permit and suffer a certain gambling table, called, etc., to be exhibited and carried on in the said premises.

II. PARTICULAR QUESTIONS OF PROCEDURE.

§ 893. Negativing exceptions and provisos.-We saw, in another connection, what exceptions and provisos in a statute must, as general doctrine, be negatived in an indictment, and what need not be. Within the distinctions there laid down

some of the statutes against gaming require the negation,' others do not.2

§ 894. Name of third person playing.- Commonly, to identify the particular instance, the indictment should by the better opinion allege the name of the third person with whom the game was played, if known; or, if not known, say that it is to the jurors unknown. But this is not required by all our courts under every form of the statutory provision; nor is it easy to derive from the cases an exact rule as to when such name becomes indispensable. But, on principle, where the transaction is otherwise identified, or where the playing is not of the essence of the offense, the giving of the players' names should not be deemed important; as, for example,—

§ 895. For permitting gaming-tables. — Under the Alabama statute against permitting gaming-tables to be exhibited on one's premises, it is unnecessary, we have seen," to allege the name of the person by whom the particular table complained of was exhibited. So likewise, in this form of the offense, the names of the players on the table or other device need not be averred."

1 Holt v. Com., 2 Bush, 33, 35.

2 Clark v. S., 19 Ala. 552; Romp v. S., 3 Greene (Iowa), 276. See ante, S$ 606, 755; [Colchell v. S., 23 Tex. Ap. 584.]

3 Crim. Pro., I, §§ 546-552, 566, 570; Butler v. S., 5 Blackf. 280; S. v. Irvin, 5 Blackf. 343; Zook v. S., 47 Ind. 463; Alexander v. S., 48 Ind. 394; Donniger v. S., 52 Ind. 326; Bond v. S., 52 Ind. 457; S. v. Maxwell, 5 Blackf. 230; Groner v. S., 6 Fla. 39; Barkman v. S., 13 Ark. 703; Jester v. S., 14 Ark. 552; Buck v. S., 1 Ohio St. 61; Davis v. S., 22 Ga. 101, 102. See also Moffatt v. S., 6 Eng. 169.

4 Green v. P., 21 Ill. 125; Coggins v. S., 7 Port. 263; Romp v. S., 3 Greene (Iowa), 276; Johnson v. S., 36 Tex. 198; Roberts v. S., 32 Ohio St. 171; [Schweizer v. Terr. (Okl.), 47 Pac. R. 1094] 5 Ante, § 892.

6 Clark v. S., 19 Ala. 552.

7 S. v. Thomas, 50 Ind. 292; Chase v. P., 2 Colo. 509; Com. v. Crupper, 3

Dana, 466. In Indiana an indictment charged "that M., on, etc., at, etc., and continuously from that day until the day of the finding of this bill of indictment, had and possessed a house, a room, a shed, and a tenement, situate in said county, and that the said M. there, during all the time aforesaid, did keep and suffer his said house, room, shed, and tenement, to be used and occupied for gaming, contrary," etc. And this was held to be good; while, to sustain it, no more need be proved than that the defendant kept any one of the places during the time and for the purpose alleged. The gambling need not be shown by direct evidence; it may be inferred from circumstances. McAlpin v. S., 3 Ind. 567. See also Bowe v. S., 25 Ind. 415; Hamilton v. S., 25 Ind. 426; Com. v. Branham, 3 Bush, 1; Com. v. Fraize, 5 Bush, 325; S. v. Lewis, 12 Wis. 434; Frisbie v. S., 1 Oreg. 264.

896. Name of game.-Where the names of the players, the date, and the locality are alleged, and in other respects the statutory terms are covered, there would appear to be a sufficient identification of the transaction without adding the name of the game. And so, in general, are the authorities; while yet, if the name is given, it must be proved, to avoid a variance. And under numerous statutes, more or less in the way of describing the game is required. There are even statutes under which it has been held necessary to give the name of the game, or aver it as unknown."

§ 897. Name of device.- Where the statute declares a particular thing by name-for example, "faro "-to be a "game," then forbids the betting at such "gaming-table or bank," an indictment is good which alleges that the defendant “did bet at a gaming bank commonly called a faro-bank;" for the court judicially knows that to be a game which the statute has specified as such. But under other statutory terms the allegation must be more or less varied from this model."

--

§ 898. Thing played for - (Money).- Where the playing for a particular thing - as, for example, "money" 6. -as, is an element in the offense, it must be alleged. But if neither the punishment nor the jurisdiction of the tribunal depends on the sum, the indictment need not say how much;' otherwise it must specify the sum.

Still,

1 Groner v. S., 6 Fla. 39. To the like effect see S. v. Maxwell, 5 Black f. 230; S. v. Ross, 7 Blackf. 322; Johnston v. S., 7 Sm. & M. 58; Dean v. S., Mart. & Yerg. 127; S. v. Grace, 21 Ark. 227; Com. v. Crupper, 3 Dana, 466; Campbell v. S., 2 Tex. Ap. 187; [S. v. Grimes, 77 N. W. R. 4; Downey v. S., 115 Ala. 108].

2S. v. Anderson, 30 Ark. 131. An indictment for unlawfully playing at cards is supported by proof of betting at a game of faro. Gibboney v. Com., 14 Grat. 582. Where the charge was an unlawful playing with cards, to wit, at the game of "all fours," of "loo" and of "whist," it was held that the defendant must be shown to have played at some one of the

games specified. Windsor v. Com., 4 Leigh, 680; [Baker v. S. (Tex. Cr. Ap.), 35 S. W. R. 666.]

3 S. v. Gitt Lee, 6 Oreg. 425; Webster v. S., 8 Blackf. 400. See S. v. Ritchie, 2 Dev. & Bat. 29.

4 S. v. Jeffrey, 33 Ark. 136.

5 S. v. Burton, 25 Tex. 420; Com. v. Monarch, 6 Bush, 301; S. v. Lewis, 12 Wis. 434; Com. v. Monarch, 6 Bush, 298; S. v. Blair, 41 Tex. 30; Blair v. S., 32 Tex. 474; S. v. Bristow, 41 Tex. 146; Ben v. S., 9 Tex. Ap. 107. 6 Ante, § 874.

7 Moffatt v. S., 6 Eng. 169; Com. v. Tiernan, 4 Grat. 545; S. v. Ward, 9 Tex. 370; [Collins v. S., 70 Ala. 19.]

8 Long v. S., 13 Ind. 566; [Stearns v. S. (Md.), 32 Atl. R. 282.]