Opinion
09-08-1857
GIBBONEY v. THE COMMONWEALTH.
Cook, for the appellant: The Attorney General, for the appellant.
(Absent LEE, J.)
An indictment for playing at cards at a public place, may be sustained by proof that the party bet at faro at the time and place stated in the indictment.[a1]
This was an indictment in the Circuit court of Wythe county against Robert Gibboney for unlawfully playing at cards at the hotel of Charles Yancey, said hotel being then and there a public place. The case is stated by Judge SAMUELS. The only question in the cause was, whether proof of betting at faro at the place and time stated, would sustain the indictment. The court below held that it would, and there being a verdict and judgment for the commonwealth, Gibboney applied to this court for a supersedeas; which was allowed.
Cook, for the appellant:
Two bills of exceptions were filed by petitioner upon the trial; but both present the same question, with so little variation, as not to require separate consideration. That question is, whether under an ordinary indictment for " unlawfully playing at cards," the defendant can be found guilty, by proof, of betting at faro.
By law, the game of faro is recognized as a different sort of gambling from ordinary card playing. It is set apart as one of a class, to be punished with greater severity than common games. Specific provisions, inapplicable to other games, have been adopted for its suppression. That the legislature intended to make it a more serious violation of law than the more common games, is apparent, not only from the peculiar provisions found in the first three sections of chapter 198, page 742 of the Code, but also from the language of the 4th section, which announces the punishment of such as bet or play at this game. It is a misdemeanor to bet at faro at any place, while other gaming is unlawful at only some particular places.
Nor is it a game necessary to be played with cards. Most usually it is so, but not of necessity. It may be played with any kind of markers or counters. Plates of tin, or pieces of leather, or paper, with suitable numbers marked upon them, would answer as well as cards; and the game thus played would be equally as unlawful as if played with cards. The second bill of exceptions shows that cards are not the only instruments with which this game might be carried on.
Windsor's Case, 4 Leigh 680, shows that when the commonwealth alleges the playing to have been at a particular game, she must so prove it. Here she alleges that the defendant " played at cards." The game proven, is a different one. The defendant could not have pleaded his conviction under this indictment, in bar of another charging him with " betting at faro. " The language of the 4th section is in the disjunctive; making either of the two offences a misdemeanor, and the commonwealth chose her ground.
Wyatt's Case, 6 Rand. 694, contains a judicial recognition of the distinction between faro and other games of the like kind, and the ordinary forms of card playing. It is one of the games in which the chances are unequal, and is therefore placed in the list of those which are especially condemned by law.
Had this indictment only charged the defendant with unlawful gaming at the place named in the indictment, possibly he might have been found guilty upon the evidence. This may be inferred from the case of Linkous, 9 Leigh 608, coupled with the remarks of Judge Semple in Windsor's Case, 4 Leigh 680. But when we come to speak of faro, we find it unnecessary to charge that it was at any public place.
The Attorney General, for the appellant.
The exceptions taken in this case are both based upon the ground, that proof of playing at faro is not sufficient to sustain an indictment for " unlawfully playing at cards. "
This may either be, because:
1st. Faro cannot be prosecuted, except under the first clause of § 4, ch. 198 of the Code; or,
2d. Faro is not described by the terms of the indictment, " unlawfully playing at cards."
The first ground is erroneous, as will appear from the following considerations:
These laws in ch. 198 are construed remedially --section 20. the 4th Section of that chapter groups offences punishable alike. It punishes faro and the like, wherever played, and any unlawful game, when played at an ordinary, in the same way. The first clause refers to faro, & c. alone; the second to " any game, except bowls," & c.
Under the second clause, then, can faro be prosecuted? The answer is found in the answers to two other questions. Is faro " any game? " The affirmative answer includes it under the terms of the second clause. Is it among the excepted games? The negative answer leaves it under the including terms, unrelieved by the exceptions.
The petitioner's counsel so argues, that if his view be right, a prosecution for playing faro cannot be instituted under a statute, whose terms expressly include it, and do not except it; and this, merely because it might be prosecuted under another clause, without a specification of an ordinary as the place. Such a construction would, so far from being remedial, be more rigid than a penal construction. See 1 Arch. Cr. Pl. & Ev. 111-5, and notes, for cases of acts having a double criminal aspect.
The second ground is equally untenable. The charge is for unlawfully playing at cards at the hotel of Yancey. Is the faro proved, within the terms of this description? Was it played at the hotel? Unquestionably. Was it a playing with cards? That it is a game played with cards appears from ch. 198, § 1; " whether the game or table be played with cards, dice or otherwise."
If it might be played with cards, it was relevant to ask the question excepted to in the first bill; to be followed, if necessary, by a question as to how it was played.
The other bill of exceptions shows it was played with cards; and does not show it could be played without them.
It may be said that on the authority of the case in 3 Rand. 108, the second bill cannot be referred to in aid of the first. The cases are different. In that, the two exceptions were to points of evidence; and as neither purported to give all the evidence, the court, to avoid injustice, refused, in considering the one, to look into the other. In this, the second bill gives all the evidence in the case. The reason for that decision is inapplicable to this case.
In addition, the question was relevant, because it is a matter of which even the court may judicially know. See 12 Gill & John. 260. Faro is usually, if not always, a game of cards. In order to the interpretation of a statute containing the word faro, as in the case of any other word, the court may judicially know its meaning without evidence.
Upon the second bill of exceptions, it is clear the verdict was right, and the instructions proper. The probata sustained the allegata completely.
In fact, the whole question rests on this distinction. Playing at cards is the generic term, which includes faro, and all other games of cards. Under this descriptive term, faro may be proved. On the other hand, as faro is a specific term, upon a charge of playing at that, no other specific game of cards would be provable.
The great objection in this case seems to rest upon the idea, that notwithstanding this conviction, the party may be again indicted for this playing at faro, under the first clause of the 4th section, and he cannot plead autre fois convict.
This assumes the point in dispute. For if for the act proved he may be prosecuted under either clause, as I insist, a conviction under either is a discharge from prosecution under the other. He cannot be again indicted; or if he be, he may plead autre fois convict, and prove that the offence charged in the second indictment is the same for which he was convicted.
It is true, it is difficult in such cases to sustain this plea. This arises from the frequent repetition of, and the likeness between, the several offensive acts, and the natural obliviousness and want of discrimination between them by the offender and the witnesses. Owing to this difficulty, the statute requires prosecutions within a year--a short limitation.
But the same difficulty occurs in like cases, where there is no question of the validity of the conviction. Thus, in liquor cases, 1 Gratt. 553, " selling to persons to the jurors unknown; " which lets in evidence of any selling within a year. See also how difficult to make the plea available against conviction for a particular game of cards; as in Windsor's Case, 4 Leigh 680.
A place must be laid, which is done here. Head's Case, 11 Gratt. 819.
All necessary to define the offence must be stated. Here it is done. 3 Gratt. 590.
It is only where as in Coe's Case, 9 Leigh 620, a different species of offence is sought to be proved from the one charged, that the evidence has been held insufficient. Here one is proved, of a number included under generic terms.
In Windsor's Case, 4 Leigh 680, a particular kind of game at cards was charged--another kind could not be proved. One species is alleged--another could not be proved. It is very different to allege under a general term and to prove any one included under it. See Semple's opinion in that case.
This last case was decided on two grounds:
1. To allege one, is to exclude all others, and thus surprise the defendant, if another could be proved.
To allege one, when another is proved, would bar the plea of autre fois convict for the record vouched, would falsify it.
Defendant's counsel, referring to Windsor's Case, in his petition concedes, that possibly a conviction upon proof of faro might have been had, under a charge for unlawful gaming. Now it would seem that, if under a charge of unlawful gaming, proof of any game, faro inclusive, would suffice, the same proof would suffice, under a general charge of unlawful gaming at cards. The latter is more specific in alleging the special character of the gaming, but each charge is inclusive of the offence proved. If the concession be right, the argument of the counsel is at an end.
6 Rand. 694 is cited to show that faro is different from other games of cards. True--but the case does not show that faro is not a game of cards. Nor is the difference spoken of material, except as to the dealer, who has the advantage of the inequality, and it is not applicable to the player.
In concluding, I would refer the court to 1 Arch. Cr. Pl. & Ev. 111-5, and the notes, for cases where the same act has a double criminal aspect; in which prosecutions for both will be good, except where under the first, there might have been a conviction for the second offence; or where the one is inclusive of the other.
Here, had there been a prosecution under the first clause of § 4, it would have barred a conviction under the second clause, because the former is inclusive of the latter. But an acquital in this case, where the place is specified, and must be proved, would not bar a conviction for faro at another place.
As to the evidence to sustain these pleas, see 1 Arch. 113, note (1); 113-1, note 2.
SAMUELS, J.
The plaintiff was indicted in the Circuit court of Wythe county, for that, on the 1st of August 1854, at the county aforesaid, and within the jurisdiction of said court, he did unlawfully play at cards, at the hotel of Charles Yancey, in the town of Wytheville; said hotel being then and there a public place, & c. The plaintiff pleaded not guilty. On the trial before the jury, a witness on behalf of the commonwealth was asked the question whether he had seen the plaintiff bet or play at faro at the place alleged in the indictment. This question was objected to by the plaintiff; but the court overruling the objection, allowed the question to be asked and answered; and thereupon the plaintiff filed his first bill of exceptions. This exception, however, does not show what answer was given to the question; nor can we look to the second bill of exceptions in aid of the first, as the first does not refer to the second; nor does the second show what answer was given to the particular question excepted to. If the court should be of opinion that the question was improper, still the judgment could not be reversed for that reason, as it does not appear that the answer was, or might have been prejudicial to the plaintiff.
In the progress of the trial it was proved that the plaintiff did bet at the game of faro at the time and place mentioned in the indictment; that the game of faro is played with cards; and that the plaintiff did not play at any other game at that time and place. Thereupon the plaintiff moved the court to instruct the jury, in effect, that proof of betting at faro did not sustain the charge of playing cards, alleged in the indictment. This instruction the court refused to give, and instructed the jury that if they believed from the evidence that the plaintiff, within twelve months before the finding of the indictment, did bet at the game of faro exhibited at the place named in the indictment, they ought to find him guilty. To these several rulings of the court, the plaintiff filed his second bill of exceptions.
It must be conceded that the law prior to the 1st July 1850 would have justified a conviction of the offence alleged in this case, upon the proof heard therein. Faro is a game, and it is played with cards; and it is not one of the class of games excepted, " bowls," & c. & c. See 1 Rev. Code, p. 563, § 5; Sess. Acts 1848, p. 114, § 5. The present Code of Virginia became the law upon and after the day above named, and gives the rule for our case. Chap. 198, § 4, p. 743, embraces this subject. The second clause of the section last cited, if it stood alone, would extend to the case, as would the previous statutes above cited, if they had remained in force. A penalty is denounced against playing " at any game at an ordinary," & c. except " bowls," & c. & c.: faro is included by the terms " any game; " it is not included within the exceptions " " bowls," & c. & c.; it is played with cards, as the evidence in the record shows; it is therefore properly described as unlawful playing at cards.
It only remains to enquire whether the first clause of § 4 of the statute has the effect of withdrawing the offence of playing at faro from the general provisions of the law; of making it a different offence to be prosecuted as such, upon allegations and proof specifically appropriate to it.
The legislature obviously intended by the first clause of § 4, to extend the previous laws against gaming at public places, to certain games, faro and others, when played at private places; to this extent new offences were created, to be prosecuted upon proper allegations and proofs. This construction is perfectly consistent with the purpose of leaving gaming at public places to the operation of the general law. And such, in my judgment, is the meaning of the law upon the most strict construction of its terms. Construing it, however, as a remedial law according to § 20, p. 745 of the Code, we must hold that as to certain games, faro, & c. when played at public places, the commonwealth has cumulative remedies: one under the general law against all forbidden games at such places--the other under the law against faro and the games classed with it, when played at any place.
The revisors of the statute say, in their report to the general assembly, p. 977, § 4, that they inserted the first clause for the sole purpose of preventing any question as to whether the place at which faro, & c. was played was public or private; they indicate no purpose of withdrawing any case from the operation of the second clause, which would be embraced by its terms.
The argument on behalf of plaintiff, that the judgment in this case will be no bar to another prosecution for the alleged playing at faro, is not well founded. The judgment will bar a future prosecution for the criminal fact of which the plaintiff may have been convicted upon the indictment in this case; and this, although the fact may be described by a different name. Having shown that in this case the plaintiff may be convicted of unlawful playing at cards, by proof of playing at faro, it follows that this judgment will bar a further prosecution for the same offence, although it shall be described as playing at faro.
I am of opinion to affirm the judgment.
The other judges concurred.
JUDGMENT AFFIRMED.
[a1] Code, ch. 198, § 4, p. 743. " If a free person bet or play at any such table or bank as is mentioned in the first section (A B C, E O table, or faro bank, or table of the like kind), or if at any ordinary, race-field, or other public place, he play at any game except bowls, chess, backgammon, draughts, or a licensed game, or bet on the sides of those who play, he shall be fined thirty dollars, and shall, if required by the court, give security for his good behavior for one year, or in default thereof, may be imprisoned not more than three months."