Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1838-07-26

suhhatod, although something took place To prevent
the fight before II actually occurred Ii is equally
difficult TO determine what would BIO the consequent
ecs Ola Judgment on an indictment for such charge.
\ convicted lor an assault is bar TO 4 prosecution
Tor not, an acqnIital of manslaughtol bar TO a
prosecution ior murder, of murder a ban to prose.
eutlon ot petit aoason.-I va cas-, l3D. llalcs,
=. clio Fosters {. H., $50. -" la eases Of this
hlnd,' It IS sad by the Reporter, IN note 10 the
e1seai Commonwealth. Kinney, . Va. Cases. lle,
where two grades OF olicuee are the result 81 the
same act the prosecutor should begun with the higher
aud on iAlmO, prosecute lur the lower, OF unite
both offences IN the samr indictment, under separate
counts.' Murder, ieonious shooting or manning,
all aillay, assault with intent To KILL may result
nom a duel for either offence the patty might be
indicted, and the Indictment would appfac him toi
Which OF the specific results proceeding from the
act oil bghtlng the duel, he was prosecuted. AID
the consequences of Il conviction OF acquitted aro as
ccrtahcd by the law. But where the charge Is lof
lighting duel alone, IL is uncertain whether he Il
proceeded against Tor distinct offence independent
Tie results, on Tor amy, on II any, tor winch, oil The
effects of the duel. Aud it Is equally uncertain what
would be The effect o a conviction OF arquitlal IA
burning any other prosecution ior an offence Of dd-
tcrent grade, resulting from the aet OF lighting du
eL The charge 10 fah q 3Rct Is not therefore G
qunalcn with the usual charge IN an indictment iol
m allfay common assault. II does not ascertain
with sufficient precision the act Tor which the party
is prosecuted. II Is uncertain what degree oi oNl-
dcHce would be required 10 make 1t out, aud the
! consequences oil judgment A1c NOT aAtilldlhtt'--
/ None OF these difficulties encountered when the
old aud accustomed forms adhered 10 and
there seems to be no necessity, of the moro ehectu
al prosecution of breaches Of tho peace committed
| by dueilins, to sanction departure nom them IN
| tins instance. malorly Of the count IS there
| fore of opinion that the indictment IS not good
whether considered rs changing the act ol iahllng
duel as beng distinct offence al cOnmon law, Oh
as being equivalent to an indictment iot an aiifay On
4 common ASSAULT. Ii -, Therefore, III answer to
IL, IIttt
that the demurrer 10 the indictment be sustained,
and Judgment entered ior the defendant.
Haay Liahoas, jr rs. Commonwealth. Pcuttonioi
viii OF enor,
The petitioner was indicted IN the GncuIt sppe
iiol Gouu ot Montgomery county. Ion unlawful ga
Iming.-'Ihe indictment contained Two counts, the
inst changing that the gaming took place AT tue
house of john Nicely, III the county aforesaid, the
same being then and there place oil public resort;
the second, that lhc gaming took place "al the house
Of one John Nicely the being then and there u
house OF enicitainmcut."--'fh defendant moved the
Court quash the second count III the indictment,
and the Court ovenuled the notion lie tlIen plea
dcd not guilty, and the Jury lmpannelIcd 10 ny the
ssue found Inn gully alleged Ia the second count
and not guilty alleged in the ist count. Where
upon the defendant moved the Count 10 enter Jadg
mcntm his atoG but the court o'eftulcd the NOTION
and gave Judgment Tor the commonwealth tor atnc 81
20 dollars aud the costs OF the prosecutions Tn TIE
nial, the defendant filed bill Of exceptions III thesc
wofds--"M Memorandum After the court had INSTRUCT /
I'd ihe iury, that II they shall be OF oplnion nom The
evidence that the defendant played cards the house
of John Nicecy, IN the indictment Is alleged, aud
that the house of said NiCc at which PERSONS
who called therefor were furnished with either meat 81
hquor for which charge WAS shade whether he had
obtained license or not, then the SAID house. "a, |
within contemplation Of law, house Oh onteftain-
mcnt, tavern, and they ought 10 iud verdict oi
guilty the defendant asked for tho following in
structon, w: That before they can find the delen=
pullty under the second the Indictment,
must appear from the evidence, that the house oi
john Nicely house Of entertainment licensed |
by law. or that IL was place Of public resort at the
time of the playing alleged IN the second count OF
the indictment. Which instruction the eouit fcius-
ed to give; to which opinion the defendant excerpts,
&c
l'obc,t {. Sta,ard for the petitioner. l. The |
defendant acquitted under the first count oil the
nd elmont, and offence against tho penal laws
Of the Commonwealth is charged in the second |
count
It's admitted tlnt an Indictment under the act
TO prevent unlawful gaming winch charges he gaming
to have taken place I'm the words Of the alhseeuon)
at au ordinary nochold, or other public place, or NJ
t4faIn (Which Is ce II lcrMi1i, both ordinary and
public place. at house Of public resort, whcth-
er licensed o. no., IS good. lord vs.. Common
wealth, Leigh, Oh Workman vs.. Common
wealth, 6 Randi CD But here the words OF the in
dictment " at the house Of John Nicely the same
being then and there Il house n entertainments
l. A house of entertainment is not CT II termtni an
ordinary, tavern, a house Of public resort, or pub
lie place. A house may be house OF entertainments
aud yet neither OF these. II is true that house oil
entertainment is general term, which may com.
prehcnd cni all, but il docs not necessarily import
amy one 81 thcm and il is not sufficient that The
terms used in the Indictment Should comprehend the
forbidden place, along with other places not fotbid-
den. The defendant las right 10 require that the
charge which he is called upon TO answer should be
distinctly made and the place is OF the very es-
scnec OF the charge, the terms used should dcSis-
nate forbidden place, aud forbidden plcc only
2. a house OF entertainment merely, is not " a
tavern" within the l6ih section OF the act, upon the
true construction of that section; aud Therefore the
reasoning of the General Count in the Of
Workman vs.. Commonwealth does not apply III tins
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 Oh not SO as to
subject the keepers OF such houses, as well as those
/ who play there, 10 the penalties OF the act. HE
V hole context and policy OF the act sustalns this con
strucon. II is an act 10 suppress Yabte gaming on
/ lin the words Of the preamble 10 the 9th secuon) to
1 prevent gaming at ORDINANCES and other pubic
| places" The 10th section does indeed, use the
terms :" every house Of encrtalnnont,' not ALSO
luttly however but IN conncXon with other words
which explain and modify lher meaning, and show
what sort OF house Of entertainment the Legislature
contemplated, II is as il the section read, Every
- house Of entertainment and public resort or,
- lhat is house Of public resort" OF, " beng
house ofpublc resort" 1t is impossible to suppose
that the Legislature meant to inciude under
this section any and every house oil entertainment, oil
every description aud Tor any purpose PAS ahopse
at which i aud G with their families board by me
~ al