#### STATE *vs.*BRAXTON LANGFORD.

June 1843

An indictment, which charged that A. B. did construct and use a public gaining place in the town of H •, in the county of H., at which a game of chance was played, and that the defendant at the said town of H. did play at the said game, *“*and did *then*and *there*bet money with the said A. B. at and upon the said game” is not good. It does not sufficiently charge that the playing and betting by the defendant were at any public gaming place. The words “ then and there” have reference only to the time and to the *venue,*tire county of H., and not to the public place of gaming before mentioned.

Appeal from the Superior Court of Law of Henderson County,'at Spring Term, 1843, his Honor Judge Nash presiding.

The defendant was tried upon the following indictment, to wit:

*355“State of North Carolina, i gg Superior Court of Law Henderson county. *\ '*Spring Term, 1S43.

The jurors for the State upon their oaths present that Amos Dickson, late of the said county orf Henderson, on the 20th day of July, A. D. 1842, unlawfully did construct and use a public gaming place in the town of Henderson-ville, in the county aforesaid, at which a game of chance was played, called Chuckaluck, at which game of chance money was bet, and that afterwards, to wit, on the day and year aforesaid, one Braxton Langford, late of the said county, with force and arms, at Hendersonville, in the county aforesaid, unlawfully did play at the said game of chance, commonly called Chuckaluck, and did then and there het money with the said Amos Dickson, at and upon the said game of chance, called Chuckaluck, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”

On the trial, it was proved that a man by the name of Dixon, carried about with him a box with three dice, and a paper, on which were marked in a circle six numbers, upon which was played the game called Chuckaluck; that the game was played by the paper being placed on a board, barrel, stump or whatever else would serve to rest it op; the person gambling selects his number on the paper, and the dice were thrown on the table by the proprietor, Dixon. If the numbers on the dice, when thrown, presented on their upper surface the number selected, the proprietor lost; if not, he won. Any number of persons might, at the same time,' bet on the game. It was further proved, that, at the Spring Term, 1842, of the Superior Court of Henderson county, the said Dixon had his paper on a board in the public court yard, when he and the defendant played for money at the game mentioned. The paper was not affixed to the board, nor was all the gambling done at one spot in the court yard. But the said Dixon would move about, and, whenever he could get a crowd, and persons to gamble with, use his paper and his dice. It was further proved, that, at *356the time the defendant gambled with Dixon, other persons also played- It was objected by the defendant’s counsel that this was not gambling within the meaning of the act of As- . , sembly.

The court instructed the jury that under the evidence the defendant was guilty. The jury returned their verdict accordingly, and a motion for a new trial having been overruled, and judgment pronounced against the defendant, he appealed.

*Attorney General*for the State.

No counsel for the defendant.

Daniel, J.

The Statute, Rev. Stat. ch. 34, sec. 68, declares, that each and every person, who shall construct, erect, keep up or use any *public*gaming table or place where games of chance shall be played, shall be subject to indictment. And each and every person, who shall play at any of the gaming tables forbidden by this act, or any game of chance, and bet any money or property, shall be guilty of a misdemeanor. We concur in the opinion expressed by the judge on the trial, but find that the indictment is defective. It charges that the defendant did play at a game of chance, and that he did bet money with Dickson upon the said game of chance. But he is not charged with doing these acts at any public gaming *place.*The indictment states, that Dickson had constructed and used a public gaming place, but it does not state that the betting of the money by the defendant with Dickson on the said game at chance, was at the said public gaming piaee, so constructed by Dickson in the town of Hendersonville. *3Ton constat,*but that the betting at the said game of chance, charged in this indictment, might have been in the town of Hendersonville, but not at a public gaming table, nor at the *place*charged in the bill to have been constructed and used by Dickson for public gambling. The words “ then and there” in the indictment have *357reference only to the *venue,*(Henderson county,) and not to the public place of gaming- in the town of Hendersonville constructed by Dickson. The indictment does not describe with certainty such facts, as in law make an offence punishable under the Statute. The judgment must be arrested.

Per Curiam. Judgment arrested.