JuLY TERM, 1856. STOCKDEN V. STATE. 1861 4STOCKDEN gaged in any game of brag, bluff, poker, V. seven-up, etc., etc., etc., or at any other game at cards, known by THE STATE. any name, etc., etc., for any bet or It is not nece ., sary, in an indictment, under the wager on such games, or far amusement Act of 12th Januery,1852 iparnph. ads of 1852,p.205), for playing cards on Sunday, to allege that the without any bet or wager, shall on con-game was played for amusement, or that the de-viction thereof, be fined in any sum fendant bet upon the game. not less than twenty-five, nor more Appeal front the Circuit Court of yell than fifty dollars." Act 12th January, County. 1853; Pamph. Acts 1852, p. 205. The motion in arrest of judgment ON. JOHN. J. CLENDENIN, H was based upon the ground that the in-Circuit Judge. dictment was defective in substance, Walker & Green, for the appellant. because it did not aver whether the de-Johnson, fendant played the game at cards for a Attorney-General, for the wager or for amusement ; State. and it is insisted that it should have 6een alleged ENGLISH, C. J. Stockden was in-that he played for the one or the other, dicted in the Yell circuit court, for to bring the offense within the terms playing cards upon the Sabbath. There of the statute. The objection assumes were two counts in the indictment: that the two are distinct offenses, and The first charged: "That Anderson that one or the other is a material Stockden, late of, etc., on Sunday, • the ingredient to constitute any otlense un-first day of July, A. D. 1855, at etc., der the statute. did unlawfully play at and upon an We think the objection is not well unlawful game of cards, commonly taken. The object of the statute was called seven up, which said game at to prohibit the desecration of the Sab-cards was then aud there, on Sunday, bath by engaging in the vicious em-as aforesaid, played by the said Ander-ployment of playing cards on that day, son Stockden, William Blake, Monroe which is set apart by Divine appoint-Phifer and James Lands, contrary to ment, as well as by the law of the the form of the statute," etc. land, for other and better engagements; The second count charged: "That and whether the defendant play for a the said A nderson Stockden, on the day wager or amusement, he is alike guilty and year aforesaid, in the county afore-of a desecration of the Sabbath, and con-said, did bet one dollanat and upon an sequently:of a violation of the law. The unlawful game of cards, commonly playing cards upon that day is the gist called seven up, contrary to the form of the offense, and whether the play-of the statute," etc. ing be for a wager or amusement isnot On the plea of not guilty, a jury material. No matter what the pur-found the defendant guilty upon pose of the game may be, it is a dese-the first count in the indictment cration of the day, and vicious to public and not guilty upon the morals in its tendencies. 1871 second. He filed a motion in If the State were required to charge arrest of judgment, which the court that the game was played for a wager, overruled, and he appealed. or for amusement, the defendant would The indictment was drawn under the insist that the proof should correspond following statute : with the allegation, and he might es-"Every person who shall, on the cape upon a technical variance, when he was really guilty of a violation 4:4 Christian Sabbath, or Sunday, be en-the law.
VoL. 18 The second count in the indictment 188 .] before us, charged the *defendant with betting on the game, and he was acquitted ; and perhaps because the State failed to prove the betting. Whether the defendant bet upon the game, or played for idle amusement, or whether the playing was in a public place, where the evil example would be extensive in its influence, or in a private and secluded place, and the like circumstances, might perhaps be considered by the jury in mitigation or enhancement of the amount of the fine to be assessed by them against the accused, but all such circumstances would be matters of evidence, and not of allegation in the indictment. The judgment of the court below is affirmed. Absent, Hon. C. C. Scott. Cited :-21-228: 30-134 ; 33-137.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.