#### *The Commonwealth v. Sanders.

July, 1835.

Gaming* — Statute—Construction—What Is “House Appurtenant to Tavern” — Case at Bar. — The lessee and occupier of a tavern, is also the occupier under the same lease of a store-house, which, however, is not within the curtilage of the tavern, nor used in any way with the tavern: Held, the store-house is not a part or an appurtenance of the tavern, within the meaning of the statute against unlawful gaming, 1 Rev. Code, ch. 147, § 16.

Same — Same—Same—Same.—To make a separate house an appurtenance of a tavern, within the meaning of that provision, such house must he used in connexion with the tavern, for the accommodation of guests, as part of the tavern.

Case adjourned from the circuit superiour court of Smyth. Saunders was indicted for unlawful gaming by playing with cards. The indictment contained two counts; one charged, that the playing took place at the tavern, and the other at the store-house, of Robert Beattie. Plea, not guilty. The jury found the following verdict: “We of the jury find, that the defendant did play at a game with cards at the store-house of Robert Beattie on the 15th February 1834: that at the time of the gaming aforesaid by the defendant, the said Beattie was a duly licensed tavern keeper in said county: that at the time of the gaming aforesaid by the defendant, the said Beattie was the occupier of a store-house, in which he kept a store on the opposite side of the middle fork of Holston river from the tavern-house opposite thereto, and about 100 yards distant therefrom: that at the time of the gaming aforesaid, the banks of the said river were connected by a bridge erected between the said tavern, and store-house: that the playing with cards by the defendant, as first herein before found, took place in the counting room of the store-house, being a room separated by a partition only from the store-room, and was during the day: that the said store-house is not within the curtilage of the principal tavern-house, nor in fact appurtenant thereto, nor was, at any time, used as a part of the said tavern, but only as a store-house for the vending of goods, yet it was held by the said Beattie at the same time with the tavern aforesaid, *and under the same lease, he having then leased the said buildings and plantation for a term of years. If upon the above facts, the said store-house was at the time of the said gaming, in law, a part of the said Beattie’s tavern, then we find the defendant guilty; if it was not, at the said time, in law, a part of the said tavern, then we find the defendant not guilty.” Upon this verdict, the court with *281the assent of the defendant, adjourned to this court, this question — what judgment ought the court to render upon the special verdict found by the jury?

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See monograpbic *note*on “Gaming” appended to Neal v. Com., *22*Gratt. 917.

LEIGH, L,

delivered the resolution of the court. The verdict submits to the court, simply, whether the store-house was, in law, a part of the tavern ; and therefore this court is not called on to decide whether a store-house unconnected with a tavern is a public place within the meaning of the statute against unlawful gaming, 1 Rev. Code, ch. 147. The 16th section of that statute declares, that every house of entertainment or public resort within this commonwealth, whether the same be a licensed tavern or not, shall be deemed and taken to be a tavern, and the owner, master, keeper, or occupier of every such house shall be deemed a tavern keeper, within the true intent and meaning of the statute, and the owner, master, keeper or occupier of any tavern, licensed or unlicensed, shall moreover be deemed to be the owner, master, keeper or occupier of every house, out house, booth, harbour, garden and other place, within the curtilage of the principal house, tavern, messuage or tenement, or in any wise appurtenant thereto, or at any time held therewith. In this case, the store-house was not within the curtilage, nor was it used in any manner with the tavern; and it cannot therefore be, a part of the tavern, unless it is made so by the words “appurtenant thereto, or at any time held therewith,” used in the statute. These words are very broad, and if taken in their literal meaning, would make this storehouse a part of the tavern, since the storehouse was held at the time of the gaming by the keeper of the tavern. But it would be improper, in putting a construction *upon these words, to- give to them their literal meaning; for if we were to do so, every house however remote from the tavern would be a part of it, if held at the same time with the tavern by the keeper. And we are of opinion, that the true construction of the statute requires, that the words “appurtenant thereto or at any time held therewith” should be held to make only such houses as are used in connection with the principal tavern for the convenience or accommodation of guests, a part of the tavern. But the court does not mean by any thing in this opinion, to intimate, that a house in the occupation of a tavern keeper, to which guests resort for the purpose of gaming, would not be a part of the tavern.

The court is of opinion, and doth decide, that judgment ought to be given for the defendant upon the special verdict. Which is ordered to be certified &c.