requirement of the statute.

It is, therefore, This was a presentment against John C. Neal and four others, in the Corporation court of Danville, for that they did unlawfully play and bet at a game or table commonly called "bagatelle," at the restaurant and eating house of Jerry Nicholas, a public place in said town.

considered, that the judgment be reversed and annulled, the verdict set aside, and that the cause be remanded to the Corporation court for the city of Lynchburg for further proceedings to be had therein.

The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record:

1st. That the mayor of the city of Lynchburg, by the 1st section of the "Act to extend the jurisdiction of police justices and justices of the peace, approved *March 30, 1871, was invested with concurrent jurisdiction with the Corporation court of all petit larcenies, and had jurisdiction to pronounce the sentence alleged in the indictment to have been before pronounced against the accused for a petit larceny; and that such sentence would bring him within the penalty of the

act.

On the trial of Neal, the Commonwealth proved that within twelve months Neal played at the game of bagatelle, and bet the sum of three dollars at the said game, at the eating house of Jerry Nicholas on Main Street in the town of Danville. And then the attorney for the Commonwealth moved the court to instruct the jury as follows: "The court instructs the jury that if they believe from the evidence, that John C. Neal, the defendant, did as charged in the indictment, bet at the game of "bagatelle," at the eating house of Jerry Nicholas, in Danville, they must find the defendant guilty." This instruction was given

by the court; and the plaintiff *excepted. The jury then found him thereon for the fine of thirty dollars, guilty; and the court rendered a judgand the costs. And thereupon Neal applied to this court for a writ of error; which was

awarded.

Jones & Bouldin, for the appellant.

The Attorney General, for the Commonwealth.

MONCURE, P., delivered the opinion of the court.

2nd. That the paper mentioned within 918 the first bill of exceptions, purporting to be the warrant of the said mayor for the appre-ment hension of Mike Thomas on a charge of petit larceny, with the indorsement thereon, was proper to be given in evidence to the jury, with other evidence to prove the identity of the accused and the genuineness of the paper; such as appears from the second bill of exceptions was given to the jury. 3d. That the plea of not guilty does not put in issue the allegation in the indictment that he had been previously convicted and sentenced for a like offence. The statute does not require that issue shall be made in the pleadings upon that allegation. It is a matter outside of the issue, and must be admitted or by the jury found," to warrant a sentence of confinement in the penitentiary for a petit larceny. And not having been admitted or found by the jury in this case, the verdict is not responsive to a material requirement of the statute. It is, therefore, considered by the court that the judgment be reversed and annulled, the verdict set aside, and a new trial awarded. And the cause is remanded to the Corporation court of the city of Lynchburg for further proceedings to be had therein in accordance with this order. Judgment reversed.

917

*Neal v. Commonwealth.* November Term, 1872, Richmond.

Absent, BOULDIN, J.t

1. Statute-Licensed Eating House a Public Place.-A

Two questions arise in this case: 1st. Whether an "eating house" is a "public 198, 8 4, p. 806, which declares that "If a in the meaning of the Code, chapter place," free person bet or play at any such table or bank as is mentioned in the first section (that is, A B C or E O table or faro bank, or a table of the like kind); or if at any ordinary, race-field, or other public place, he play at any game, except bowls, chess, backgammon, draughts, or a licensed game, shall be fined thirty dollars, and shall, if or bet on the sides of those who play, he required by the court, give security for his good behavior for one year; or in default thereof, may be imprisoned not more than three months." And 2ndly. Whether it be contrary to the said section to bet at the game of bagatelle at such public place, though the said game be a licensed game. As to the first question, we are of opinion that an "eating house" is a "public place" in the meaning of the said section. What constitutes an "eating house" is defined by law. "Any person who shall cook, or

licensed eating house in a town is a public place in otherwise furnish for compensation, diet or

the meaning of the Code, ch. 198, § 4, p. 806. 2. Same-Betting - “Bagatelle." ― Betting on the game of "bagatelle," at a public place is a violation of the statute, Code, ch. 198, § 4. p. 806; and it is

equally so if the person plays as well as bets.

3. Betting at Public Place-Unlawful. It is unlawful

to bet at any game at a public place.
*For monographic note on Gaming, see end of case.

+He had been counsel.

refreshments of any kind for casual visitors at his house, and sold for consumption therein, and who is not the keeper of an ordinary, house of private entertainment or eating house;" is required to obtain a boarding house, shall be deemed to keep an license for doing so, and is subject to a fine for keeping such a house without obtaining such license. Acts of Assembly

919 1869-70, p. 239, ? 126, p. 281,

124, p. 481, 42.

27; *1870-71, p. 107, 40; 1871-72, p. 190,

As to the second question, we are of opinion that it is contrary to the said section to bet at the game of bagatelle at such public place, though the said game be a licensed game, as is admitted to have been the fact in this case.

The keeping of a bagatelle table is a business capable of being licensed, and was so capable at the time the gaming in the indictment mentioned is therein charged to have taken place. Code, ch. 38, % 1, Acts of 1869-70, p. 240, 31; 1871-72, p. 190, 126, p. 482, 45. To play at the game of bagatelle at a licensed bagatelle table, is to play at a licensed game, and is lawful under the Code, ch. 198, 4, though such game be played at a public place.

of those who play at any game;" that is, of those who game. In 1 R. C. 1819, ch 147, % 5, p. 563, the words actually used are "or shall bet on the sides or hands of such as do game;" and the same language is used in our former acts on the subject, from which the act in the Code of 1819 was taken. See the Codes of 1803 and 1814, ch. 96, 5. The evils recited in that section and the corresponding section of the act of 1819, which it was intended to remedy, confirm the construction we have put upon the 4th section of chapter 198 of the Code of 1860. That construction is that it is unlawful to bet at any game at a public place.

If this be not the true construction, then it is lawful to bet to any extent, no matter how great, at any of the excepted games, or on the sides of those who play at such games, at a public place. Can it be possible that the Legislature intended to legalize so great an evil? *We think not, and we think this conclusively appears by comparing the 4th and 5th sections of chapter 198, standing side by side in the Code.

921

We have seen what the 4th section is. The 5th is in these words:

" 5. If a free person, by playing or betting at any game or wager, elsewhere than at a public place, lose or win, within twenty-four hours, a greater sum, or anything of greater value, than twenty dollars, he shall be punished as in the preceding section."

This section plainly applies to any game whatever, without exception. That is the express meaning of the words "any game or wager" standing by themselves. In the Code of 1819 the words are "any game or wager whatsoever." But this word "whatsoever," though emphatic, was unnecessary to express the plain meaning of the other words without it, and was, therefore, dropped in the present Code.

But is it lawful under the said section to bet at such licensed game at a public place? That is the question we now have to solve. "If a free person bet or play at any such table or bank as is mentioned in the first section," is the language in which the 4th section commences. Here the words "bet and play" are both used, and it is made unlawful to bet or to play at any such table or bank as is here referred to, either at a public or a private place. Such a gaming table is incapable of being licensed. The section then proceeds: "or if at any ordinary, racefield or other public place." Here the place of the gaming is material, and it must be a public place: "he play at any game except bowls, chess, backgammon, draughts or a licensed game." Here the word "play" alone is used, and not both the words "bet" and "play" as in the commencement of the section. Why was this difference made, if the Legislature intended to place betting and playing on the same footing in this part of the section, as was intended and expressed in the first part of the section? If the Legislature had so intended, it Then if the construction of the 4th section *would have said, "if at any ordinary, contended for by the plaintiff in error be race-field, or other public place, he bet correct, a person who, by playing or betting or play at any game, except bowls, chess, at a licensed game elsewhere than at a backgammon, draughts, or a licensed public place, loses or wins, within twentygame. Then it would have been expressly four hours, a greater sum, or anything of made lawful to bet, as well as to play, at greater value, than $20, is punishable; the excepted games, of which a licensed whereas a person who, by betting on the game" was one; and there could have been sides of those who play at a licensed game, no doubt in that case of the legislative in- at any ordinary, race-field, or other public tention. That mode of expressing it was place, loses or wins, within twenty-four the simplest and most obvious that could hours, a sum or thing of any amount or have been adopted. It required the use of value, however great, is not punishable? 'only two additional words, "bet or," and it This would certainly be a great inconwould have followed the same mode of ex-gruity in the law, and could never have pression just before used in the first part of been intended by the Legislature. Such the section. Instead of that, the word an intention will not be imputed to the "play" only is here used, and the section, Legislature, unless it be plainly expressed after the words "except bowls, chess, back- in the law. It is not so expressed. On the gammon, draughts, or a licensed game, contrary, the intention which we attribute thus proceeds: "or bet on the sides of those to the Legislature is much more reasonable, who play, he shall be fined," &c. "Who and sufficiently appears from the language play" at what? At any game at a public of the law. According to our view place. The meaning is as if the section 922 of the two sections, *four and five, a had run thus: "If at any ordinary, race- person is punishable, under section field, or other public place, he play at any four, who bets or plays at faro bank, or a game except," &c., "or bet on the sides table of the like kind, anywhere, or plays

920

VI. Prosecution and Punishment.

A. Jurisdiction.

B. Indictment and Information.
1. Sufficiency in General.

at any game, except bowls, chess, back- IV. Particular Games Prohibited.
gammon, draughts, or a licensed game, at v. Betting on Elections.
any ordinary, race-field, or other public
place, whether anything be bet or not upon
the game, or bets anything of any value or
amount on the sides of those who play at
any game, at any ordinary, &c.; and under
section five, who by playing or betting at
any game or wager, elsewhere than at a
public place, loses or wins, within twenty-
four hours, a greater sum, or anything of
greater value, than $20.

2. Description of Game or Device.
3. Allegations as to Place.

4. Charging Several Offenses in One Indictment.
C. Appearance by Attorney.
D. Right to Trial by Jury.
E. Evidence.

F. Issues, Proof and Variance.
G. Sentence and Punishment.

TIONS.

A. In General.-A direction by a testator that all his just debts be paid out of the proceeds of the sales of certain lands does not authorize the payment of a gaming debt out of the proceeds of such sales. Carter v. Cutting, 5 Munf. 223.

B. Partnership in Gaming.-A house was pur

chased, furnished and used by partners in gambling,

one of the partners paying the whole consideration.

In the Code of 1819 the words "elsewhere than at a public place," which we find in section 5 of ch. 198 of the present Code, were not inserted. So that under the Code I. NATURE AND VALIDITY OF GAMING TRANSACof 1819 a person who, by playing or betting at any game or wager at a public place, lost or won, within twenty-four hours, a greater sum, or anything of greater value than twenty dollars, was certainly punish: able, as much as he would have been if the game or wager had been at a private place. The Legislature surely did not intend to change the law in that respect, by inserting the words "elsewhere than at a public Upon the death of the other partner, it was held that place," in 5 of ch. 198, of the present the house and furniture were not to be regarded as Code. It is much more reasonable to sup- unlawful property, and that the partner who had pose that those words were so inserted be-paid the whole price was entitled to be reimbursed cause the Legislature considered that any from the estate of the deceased partner, and to have betting to any amount at a game played at the furniture sold and one-half of the proceeds a public place was punishable under section four of the same chapter; and, therefore, only the case of betting at a game or wager, elsewhere than at a public place, remained to be provided for by section five. It is argued by the plaintiff in error, by counsel, that section four does not prohibit betting on one's own game, but on the sides of others who play. We think this construction is wrong, and that section four, in prohibiting a person from betting on 923 the sides of those *who play, includes the case of a person betting on his own game.

Upon the whole, we are for affirming the judgment of the Corporation court of Danville.

STAPLES, J., doubted, but yielded his

doubt.

Judgment affirmed.

GAMING.

I. Nature and Validity of Gaming Transactions.
A. In General.

B. Partnership in Gaming.

C. Loans for Gaming Purposes.

D. Obligations and Securities for Gaming Considerations.

E. How Money or Property Lost at Gaming Recovered Back.

II. The Wager.

A. Necessity for a Wager.

paid to him, and, as he was the administrator of

the deceased partner, that the other half was to be

credited to the estate. Watson v. Fletcher, 7 Gratt. 1.

C. Loans for Gaming Purposes.-Money lent to be

bet on a presidential election cannot be recovered back. Machir v. Moore, 2 Gratt. 257.

Loans to Pay Losses.-A judgment was obtained against a surety on notes given as margins on grain and pork options. The surety borrowed money to pay the judgment, securing the lender by a deed of trust on land. The lender had no connection with the option transaction, nor was it shown that he had any knowledge of it. Held, on a creditor's bill to

audit the liens on the lands of the surety, that the trust deed to the lender was not void as against the

other creditors, as being based on a gambling consideration. Krake v. Alexander, 86 Va. 206. 9 S. E. Rep. 991.

D. Obligations and Securities for Gaming Considerations. Where part of a bond is on a gaming consideration and the other part on a lawful consideration. a court of equity will relieve against the part which is vicious, and sustain that which is good. Skipwith v. Strother, 3 Rand. 214.

Sureties and Other Substituted Obligors.-M. won a certain sum of money at cards of W., and J. won the same sum of M. At the request of M., W. gave his bond for the amount to J. Held, that the bond was void. Woodson v. Barrett, 2 Hen. & M. 80, 3 Am. Dec. 612.

Where the acceptor of a bill founded on a gaming consideration is forced to pay the same to an innocent holder thereof for valuable consideration, he may recover the amount of the drawer. Dade v.

B. What Constitutes a Wager-Mutuality of Risk. Madison, 5 Leigh 401.
C. Amount Staked.

D. Participation in Wager-Renting Room to
Gamesters.

E. The Contract of Wager-Where Made.

III. Gaming in Particular Places.

Where a father undertakes by a written agreement to become surety for the payment of a gaming debt by his son, recites this fact in his will, and devises land to his son charged with the payment of such debt, such charge is not a consideration pre

cedent binding the son or his representatives to pay the debt, but he and they are entitled to hold the estate discharged thereof. Carter v. Cutting, 5 Munf. 223.

Bona Fide Holders.-Where an infant lost at gaming and. after coming of age, gave his bond for the amount of the debt and assured a prospective assignee that there was no defense to it and that it would be paid, the bond will be enforced in equity. Beverly v. Smith, 1 Wash. 296, 1 Am. Dec. 463.

Where a person, not knowing the circumstances, is induced by the obligor to purchase a bond given for a gaming consideration, equity will not relieve against a judgment obtained upon the bond. Hoomes v. Smock, 1 Wash. 389.

A bond founded on a gaming transaction is valid in the bonds of a bona fide assignee for value, especially where he was induced to purchase the same by the assurance of the obligor that there was no objection to it and that it would be paid. Pettit v. Jennings, 2 Rob. 676.

E. How Money or Property Lost at Gaming Recovered Back. If a person lose to another, within twenty-four hours, ten dollars or more, or property of that value, and pay or deliver the same, such loser may recover it back from the winner by suit or warrant, according to the amount or value, brought within three months after such payment or delivery. W. Va. Code 1899, ch. 97, § 2, p. 763. See O'Connor v. Dils, 43 W. Va. 54, 26 S. E. Rep. 354: Cramer v. Pomeroy (W. Va.), 34 S. E. Rep. 762. For similar provision in Virginia, see Va. Code 1887. II. THE WAGER.

2837.

A. Necessity for a Wager.-Playing at cards in a tavern is unlawful gaming whether the party bets or not. Com. v. Terry, 2 Va. Cas. 77.

B. What Constitutes a Wager-Mutuality of Risk.— M. sold to S. a wagon to be paid for by S., who was a candidate for an office, if the latter should be elected to said office at the next ensuing election. and S. gave his check with this understanding, the wagon not to be paid for if S. should not be elected. Held, that this was a wager within the meaning of Va. Code 1860, ch. 198, § 10. ROBERTSON, J., delivering the opinion of the court, said: "It is true, that a bet does imply risk, but it does not nec essarily imply risk in both parties. There must be between them a chance of gain and a chance of loss, but it does not follow that each of the parties to the bet must have both these chances. If, from the terms of the engagement, one of the parties may gain but cannot lose, and the other may lose but cannot gain, and there must be either a gain by the one or a loss by the other, according to the happening of the contingency, it is as much a bet or wager as if the parties had shared equally the chances of gain and of loss. *** One person alone cannot be guilty of the offense of betting. There must be always at least two parties engaged in it. It is a joint act; and when the chance of gain and the chance of loss are created, it matters not how those chances are distributed between the parties there exists all that is necessary to constitute a bet." Shumate v. Com., 15 Gratt. 653.

A. agreed, in consideration of £25,000, to be paid by B. in the years 1780 and 1781, to pay B. £2,500 in specie in 1790. Held, that this agreement was not a wager. Brachan v. Griffin, 3 Call 433.

An agreement by a person with a broker to buy and sell gold for the latter on commission is not in any sense a wager. Brown v. Speyers, 20 Gratt. 296.

C. Amount Staked.-Where a prize exceeding $20 in value is won at a raffle by two or more individuals in partnership, but the share of the gain won by each is less than $20, they are not punishable under the gaming act. Com. v. Garland, 5 Rand. 652.

Taking a chance in a raffle at $20, or any smaller sum where the property raffled for exceeds $20 in value, and the raffling takes place in a private house, does not bring the person within the operation of the gaming act. Com. v. Garland, 5 Rand. 652.

A person who takes a chance for an article exceeding $20 in value, and wins the article, is liable under the gaming act. Com. v. Garland, 5 Rand. 652.

D. Participation in Wager-Renting Room to Gamesters. A person who keeps tables on which the game of poker or draw poker is played, but who is only interested in the game for compensation for the use of the tables, house and gas, is not guilty under the statute, Va. Code 1873, ch. 194, § 1, of being concerned in interest in the keeping of a table of the like kind with faro, keno, etc. Nuckolls v. Com., 32 Gratt. 884. E. The Contract of Wager-Where Made.-Where an offer to bet is telegraphed by a person in one city to a person in another and the latter accepts by telegraph, the betting is done in the city where accepted. Lescallett v. Com., 89 Va. 878, 17 S. E. Rep. 546.

A person who keeps a house wherein he posts the names of horses running on a race track in another state, and who telegraphs orders of customers to bet money thereon, which bets are accepted at the track, does not violate Acts 1891-92, p. 626, § 1, making it an offense to keep any house for the purpose of "betting therein," since the betting is done at the race track. Lescallett v. Com., 89 Va. 878, 17 S. E. Rep. 546.

III. GAMING IN PARTICULAR PLACES. Playing cards in a tavern is unlawful gaming, whether the party bets or not. Com. v. Terry, 2 Va. Cas. 77.

If a party indicted for suffering an unlawful game to be played at his tavern, was keeper of the tavern at the time of such playing, his having a license at the time is not necessary to his conviction. Com. v. Price, 8 Leigh 757.

On a day when many persons were assembled at a tavern for the purpose of mustering, a party engaged in gaming in a barn 200 yards distant from the tavern house and in a separate enclosure, though on the same plantation, the barn being 60 or 70 yards in the rear of another barn in which spirits were sold by the tavern keeper. Held, that the first-mentioned barn was a public place, within the meaning of the act to prevent unlawful gaming. Farmer v. Com., 8 Leigh 741.

Bedroom in Hotel.-Playing poker in a room in a hotel with the door locked is not a violation of the statute prohibiting gaming at a hotel or other public place. State v. Brast, 31 W. Va. 380, 7 S. E. Rep. 11.

Building Disconnected from Tavern.-To make a separate house an appurtenance of a tavern, within the meaning of the statute prohibiting gaming within a tavern or any building appurtenant thereto, such house must be used in connection with the tavern for the accommodation of guests. Com. v. Sanders, 5 Leigh 751.

The lessee and occupier of a tavern was also the occupier, under the same lease, of a storehouse, which, however, was not within the curtilage of the tavern, nor used in any way with the tavern. Held, that the storehouse was not a part or appurtenance of the tavern, within the meaning of the stat

storehouse is not, prima facie, a public house, though elected to said office at the next ensuing election,