According to this view of the case, the description of the offense in twelfth section must be taken alone, and independent of, and unaided by the first section, whether they be taken together as descriptive of one offense, or separately, as descriptive of two offenses. I have endeavered to show that the words are descriptive, and intend only one offense, and shall not repeat what I have said as to their being alter nate descriptions of the same offense, but will only make one remark: Can I judicially know that a faro-bank is a gaming-table? In what book shall I look to know this? I do find a faro-table recognized in the Maryland act of 1797,1 but no faro-bank. If, then, the expression, keeping a faro-bank or gaming-table, means two distinct offenses, then, by strong implication, a faro-bank is not a gaming-table, because a gaming-table, being a generic term, would necessarily include the species, faro bank. But if you will place them in antithesis, and farobank is not a species of the genus gaming-table (and a very extensive genus it is), then faro-bank is a very innocent and harmless diversion, and never was intended to be, nor could be, without great absurdity being ascribed to the Legislature, denounced as a crime. The only rational interpretation of the words describing the offense in the twelfth section, is, that the words, or gaming-table, are but an alternate and more precise description of a faro-bank, and inform us that a farobank is a gaming-table, without which we could not judicially know it. The result of the foregoing conclusions is, that a sweat-cloth or ragtable, is not within the provisions or prohibitions of the twelfth section; and as, according to my view, it can not be extended, even in these more philosophical days of liberal construction, by any aid or support drawn from the preamble, or first section, an indictment for such offense can not be sustained.

I will add one more remark; all that I have said in the foregoing opinion is exclusively with reference to the case before us, namely, the keeping of a sweat-table.

It is probable from what I have observed, that we may have motions in arrest of judgment for keeping faro-banks; therefore I do not mean that anything in this opinion commits me, one way or the other, as to this latter offense; if a question on such an indictment is made, I shall consider it with all the deliberation in my power I believe, however, that this particular species of gaming was the one intended by the stat ute to be suppressed.

There is another important word, used in the description of the of fense, which deserves much consideration; and this is the word "keeping," both in the first and twelfth sections.

1 ch. 110.

The meaning of this term, as I understand it, gives strength to the intimation, in the close of my argument, that no gaming tables but faro were intended to be denounced and punished by the act; or, at most, none but such as were fixed, and permanently, or at least, for a considerable period, established; so as to be places of known and common resort.

What is the true import of the verb to keep? Does it not import something more than setting up a table for a day, or during the races, if the proof had so established the fact, which, however, it did not, because the testimony in all the cases tried this term, went to the extent only of a single exhibition of a gaming-table on one day only; or proved only one act of playing, or gaming, by the setter up. Now, can the term "keeping " embrace such a case as this?

If I understand the meaning of the term, it implies some duration or permanency; and that the opening, or instituting, or setting up a gaming-table for one day, or a few days during a public race, if the evidence even went so far, is not keeping a gaming-table within the meaning of the statute. Let us endeavor to acertain the true import of the term, by illustrations drawn from common usage, as well as from the best dictionaries.

That it is never employed to signify any temporary business or employment or engagement, is evident from innumerable instances where this verb is used, as in the following instances. This is a rule, as far as I know, without exception. If there be one, I have not discovered it. We say he keeps a hotel, a store, a billiard-table, a register's office, a broker's office, a coach, a horse, a gig, an omnibus, carts for hire, a livery-stable, a school, a mistress, etc.

Now, does not every instance in the examples above quoted show that the word is only employed in cases of expressing the idea of some permanent and established business? That Congress meant only to strike at those known and established gaming-tables, such as faro, I have no doubt, for the reasons herein before given, but because those dangerous resorts were best known, were prominent in importance and danger, and, therefore, were the particular and exclusive subjects of legislation. They never meant to invade the precincts of the race-field, that annual jubilee of immemorial usage, where the species of petty gambling during the jubilee has been coeval with the festival itself; and tolerated by all the legislatures of the States where this species of annual amusement has been in use. They hardly meant to visit with the enormous penalty of penitentiary confinement the poor negroes who kept their fippenny-bit sweat-cloths or rag-tables, during this period, and on this theater of almost universal relaxation of discipline during this festival.

I have no dictionary at home except Ainsworth's. The Latin word which seems to me to express, most nearly, the English word to keep, is sustentare, and this word, in that language, implies to maintain, support, etc., extending its operation and effect beyond the ephemeral existence of a day.

I am unable to give any etymological history of the word for the want of the proper books, but collect its true import, not only from the corresponding word in another language, from which many of our words are derived (though the verb, to keep, is not, but is most probaably of Saxon or Teutonic origin), but from the sense in which it is, without exception, used in common parlance, and usus est jus et norma loquendi.

GAMING PERMITTING MINOR TO PLAY BILLIARDS.

CONYERS v. STATE.

[50 Ga. 103.]

In the Supreme Court of Georgia.

On the Trial of an Indictment for permitting a minor to play billiards without the consent of his parents or guardian, the burden of proof is on the State to show that the minor did not have the consent of his parents or guardian.

MCCAY, J. Whilst it is certainly true, as a general rule, that the burden of proof is upon the party who holds the affirmative of a proposition, yet there are many instances in which a contrary rule obtains. Our Code, 1873,1 declares that "if a negation or negative affirmation is essential to a party's case, the proof of such negative lies upon the party affirming it." The test is, Does the negative form an essential ingredient in the thing sought to be established? Does the mind fail to agree to the proposition insisted on, so long as the negation remains unproven? If so, the proposition is not made out, and the party asserting the negation must prove it.

In criminal cases, the law requires that the State shall prove all the essential facts entering into the description of a crime, and, except in a very few special cases, the defendant can not be put upon his defence, until the State has shown affirmatively every such act. In Elkins v. State, this court lays down the rule very broadly, and asserts that whatever is made by the statute an essential part of the offense, must be set out in the indictment and proven by the State. The want of consent

by the parent or guardian is the very gist of this crime. It is not unlawful for men to play billiards. It is not unlawful even for minors to play, if their parents or guardians consent. The want of the consent is the very essence of the offense. There is a class of negations which it is almost impossible to prove affirmatively. Where the field to be covered by the evidence is so broad as that, the burden would be intolerable upon the public, to afford the time necessary for hearing this proof, as where it is only possible to prove that one was present, by examining a large number of persons who did not see him, or where the proof that one did not do a thing can only be established by proof following him from movement to movement, through a considerable time. But there are negations that are just as easily proven as an affirmative, as where the negation depends upon a moment of time and a particular place, or is within the knowledge of a single person. In the former class, even, the general rule that the prosecutor in criminal cases must prove all the ingredients of the crime, has, in some cases, been relaxed. As in prosecutions under the English game laws, where one may kill game if he has one of a large number of qualifications, it has been held that it was not necessary for the Crown to go to expense and the public to suffer the inconvenience of proving the absence of each of the required qualifications, especially (and this is perhaps the true point on which the exception turns) if the facts lie peculiarly in the defendant's knowledge.

This was the holding of the court in King v. Turner,1 and it seems to have been followed in 1 Ryan and Moody,2 1 Carrington and Payne,3 and by several other English and many American cases, though it is certainly true that the old cases even on the game laws are different. Our own court has made the exception in the case of an indictment for retailing spirituous liquors without license. In the case of Sharp v. State, this court held that if the selling of spirituous liquors was proven the onus was shifted to the defendant, and that it was not necessary for the State to prove the want of license.

5

This is a strong case, for the want of the license is a part of the description of the offense. We are free to say that we do not think the reasoning of the court in that case very sound, since it is said there that by his plea of "not guilty" the defendant admits the selling, and asserts that he has license a line of reasoning which is, as it seems to not guilty denies the whole charge. But

us, untrue, since the plea of

the case may be sustained on another ground, and by authority. The

license is a written authority to the dealer to sell, and the presumption is that he has it it in his possession. It is peculiarly within his knowledge. The negative can not be shown conclusively by the State. could only be proven that no such license was recorded; but the defendant might have the license and be not guilty, though the license was not recorded. All the proof in the power of the State would be inconclusive, to wit: that no such license was issued. The license is in writing, and can not be proven by parol, and it is in the defendant's possession, if it exists, and on this ground there are many cases making this special crime an exception to the general rule.1 But, undoubtedly, the general rule is that in criminal cases the burden of showing all the facts necessary to make out the defendant's guilt is upon the State.

In rape, the proof must show that the act was against the will of the female. In robbery, that the taking was against the consent of the person robbed; in larceny from the person, that the taking was without the knowledge of the possessor in the case; opprobrious words, that they were unprovoked, and in the various acts of trespass against property, as cutting wood, etc., on another's land, that they were without the owner's consent. The books are full of illustrations of the position we have asserted, to wit: that if in order to make the defendant guilty, it be necessary to show a negative the burden of showing it is upon the State.2 In the same volume is a case for profane swearing, under the act of 6 and 7 William III. The act put a penalty of one shilling upon a servant, and two shillings on every other person. The conviction was quashed because it was not proven that the defendant was not a servant. So in Rex v. Allen,3 and Rex v. Rodgers, in an indictment for killing deer on the ground of another without his consent, it was held that the prosecution must prove the want of consent.5

4

The case at bar, we think, comes within the general rule. The consent of the parent is not required by the statute to be in writing, and does not, therefore, as in the case of license to sell, lie peculiarly within the knowledge of the defendant. That the consent was not given is as well known to the parent or guardian as it is to the defendant. We are, for these reasons, of the opinion that the conviction was wrong, under

1 See the cases, both English and American, above referred to in 1 Bennett's Cr. Cas., and notes 306, 319; though there are many cases of a high authority to the contrary. 24 Pick. 380, and the cases there cited.

2 Harvey v. Towars, 4 Eng. L. & E. 531; May v. State, 4 Ala., as when the defendant was indicted for keeping a grey hound, not being a person qualified. 1 Str. 66.

31 Moo. C. C. 154.

4 2 Camp. 634.

5 See, also, 2 Greenl. 228; 2 Car. & P. 45; 2 Jones (N. C.), 276; where the doctrine is dis. cussed. See, also, 10 East, 211, where it was held that the burden was on the crown to show that the defendant had not taken the sacrament. In 5 Rich. 57, that a practicing physician had no license; that one was not. qualified to vote. 9 Metc. 286.