#### *Linkous v. Commonwealth.

June, 1838.

Gaming: — Indictment—Allegation as to Place.* — An indictment charging the defendant with unlawful gamingat thehouse of J. N. the samebeingahouse of entertainment, is sufficient.

Petition for writ of error to a judgment of the circuit superiour court of Montgomery county, rendered against the petitioner- upon an indictment for unlawful gaming.

The indictment contained two counts; the first charging that the gaming took place “ at the house of John Nicely, in the county aforesaid, the same being then and there a place of public resort;” the second, that the gaming took .place “ at the house of one John Nicely, the same being then and there a -house of entertainment.” The defendant moved the court to quash the second count in the indictment; which motion the court overruled. He then pleaded not guilty, and the jury impanelled to try the issue, found him guilty as alleged in the second count, and not guilty as alleged in the first count. Whereupon the defendant moved the court to enter judgment in his favour; but the court overruled the motion, and gave judgment for the commonwealth for a fine of 20 dollars and the costs of the prosecution. On the trial the defendant filed a bill of exceptions in these words — “Memorandum: After the court had instructed the jury, ‘ that if they shall be of opinion, from the evidence, that the defendant played cards at the house of John Nicely, as in the indictment is- alleged, and that the house of said Nicely was one at which persons, who called therefor, were furnished with either meat or liquor, for which a charge was made, whether he had obtained a license or not, then the said house is, within contemplation of law, a house of entertainment, or tavern, and they ought to find a *verdict of guilty’ — the defendant asked for the following instruction, viz. That before they can find the defendant guilty under the second count in the indictment, it must appear from the evidence, that the house of John Nicely was a house of entertainment licensed by law, or that it was a place of public resort, at the time of the playing alleged in the said second count of the indictment. Which instruction the court refused to give; to which opinion the defendant excepts,” &c.

Robert C. Stanard for the petitioner.

I. The defendant was acquitted under the first count of the indictment, and no offence against the penal laws of the commonwealth is charged in the second count.

It is admitted that an indictment under the act to prevent unlawful gaming, which charges the gaming to have taken place (in the words of the fifth section.) at “an ordinary, racefield, or other public place,” or at a tavern (which is, ex vi termini, both an ordinary and a public place) or at a house of public resort, whether licensed or not, is good. Hord v. Commonwealth, 4 Leigh 674; Wortham v. Commonwealth, 6 Rand. 675. But here the words of the indictment are, “ at the house of John Nicely, the same being then and there a house of entertainment.” . .

1. A house of entertainment is not ex vi termini an ordinary, tavern, a house of public resort, or a public place. A house may be'a house of entertainment, and yet neither of these. It is true that “house of - entertainment ” is a general term which may comprehend them all, but it does not necessarily import any one of them ; and it is not sufficient that the terms used in the indict-; ment should comprehend the forbidden place, along with other places not forbidden. The defendant has a-right to require that the *215charge which he is called upon to answer should be distinctly made ; and as the place is of the very essence of the charge, the terms *used should designate a forbidden place, and a forbidden place only.

2. A house of entertainment merely, is not “ a tavern” within the 16th section of the act, upon the true construction of that section ; and therefore the reasoning of the general court in the case of Wortham v. Commonwealth does not apply to this case.

The obvious intent and meaning of that section is, to embrace within the provisions of the act all houses of public resort, whether licensed or not, so as to subject the keepers of such houses, as well as those who play there, to the penalties of the act. The whole context and policy of the act sustains this construction. It is an act to suppress public gaming ; or (in the words of the preamble to the 5th section) ‘ ‘ to prevent gaming at ordinaries and other public places.” The 16th section does, indeed, use the terms “ every house of entertainmentnot absolutely, however, but in connexion with other words which explain and modify their meaning, and shew what sort of house of entertainment the legislature contemplated. It is as if the section read, “ every house of entertainment and public resort, ” or, “ that is a house of public resort,” or, “being a house of public resort.” It is impossible to suppose that the legislature meant to include under this section any and every house of entertainment, of every description and for any purpose. A. has a house at which B. and C. with their families board by the month, or by the year. They are not members of A.’s family, and therefore A.’s house is, for them, a house of entertainment; but it will scarcely be contended, that such a house is a tavern, within the 16th section of the gaming act.

II. There is nothing on the face of the record, on which judgment can be rendered against the petitioner.

The jury find him guilty of gaming at “ a house of entertainment.” Now, a house of entertainment is a place of public resort, or it is not. If it is not a place '*of public resort, then, neither ex vi termini nor by operation of law', neither within the 5th nor the 16th section of the act, is it a forbidden place ; and the court cannot pronounce judgment on such a finding, any more than if the jury found the defendant guilty of playing at the private house of A. or B. And if it be a place of public resort, then he is entitled to an acquittal, under the express finding of the jury, that he was not guilty of playing at a place of public resort. The whole verdict of the jury must be taken together ; and, so considered, that verdict is merely nugatory, or it ascertains beyond all question, that whatever a house of entertainment may be, it is not a place of public resort.

*

Gaming — Indictment—Allegation as to Place. — See monographic *note*on “Gaming” appended to Neal v. Com., 22 Gratt. 917; monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

. Indictments — Each Count a Separate Indictment. — in State v. Smith, 24 W. Va. 817, it is said : “In all cases, however, in which there are two or more counts in the indictment, whether there is actually one of-fence, or several, each count is regarded as a separate indictment and is supposed to represent a distinct offence. *Linkous Case, 9 Leigh*612.” To the same effect, the principal case was cited in Mowbray’s Case, 11 Leigh 649 ; State v. Shores, 31 W. Va. 495, 7 S. E. Rep. 415. For other .cases in point, see monographic Mote on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

LOMAX, J.,

delivered the opinion of the court. — The court is of opinion, that the authority of Wortham v. Commonwealth is decisive in sustaining the second count in the indictment in the present case. The case referred to has decided (in conformity to the 16th section of the gaming law) that a house of public resort, whether licensed or not, is a tavern, and consequently is a public place within the terms of the 5th section ; and that it is sufficient that the indictment should, in the terms of the 16th section, charge the gaming to have been committed in a house of public resort, and such charge is as correct as if laid in the words of the 5th section.

In the case now under consideration, the indictment charges (in like manner in the words used by the legislature in the 16th section) that the gaming was perpetrated in “ a house of entertainmentand it would seem necessarily to be brought, by the legislative definition of a tavern, which is considered a public place, within the scope of the 5th section, as was the case in Wortham v. Commonwealth.

Whatever complaint may be made of the vagueness of the expression “every house of entertainment,” and the extent to which that expression may be carried, it *was fully competent to the legislative authority to adopt those terms in the widest construction ; and if such appeared to be the design of the legislature, the courts would be bound to conform to it.

There is no occasion, however, for the apprehension that the words “ a house of entertainment ” can be liable to any dangerous or inconvenient latitude of construction. “A house of private entertainment ” is an expression frequently used in the acts of assembly, and though the word private is used, yet for many purposes such houses are regarded as public. The meaning which the legislature attaches to these terms of description seems not liable to misconstruction. Nor does the expression seem more liable to misconstruction when the word private is dropped, and the house of entertainment is declared to be a tavern.

It is objected in this case, that the defendant having' been acquitted upon the first' count in the indictment, which charged the gaming to have been committed “ at the house of John Nicely, the same being then and there a place of public resort,” it is apparent that the house of entertainment where the defendant, under the second count, was convicted of playing, could not have been a public place. This objection assumes, that all the offences charged in the indictment must necessarily have been the same, and that no evidence was offered but of one and the same offence. This, the court thinks, is contrary to the intendment of the law, by which each offence in each count of the indictment is to be regarded as a separate, distinct offence, at least until it be shewn that there was only one offence. There is nothing in this record to shew that that was the case.

The court is of opinion that there is no error in the proceedings, and Iherefore refuses the writ of error prayed for.