STATE V. GRIDER. VOL. 18 STATE V. GRIPER. In an indictment for betting on any one of the games named in the fir4 section of the gaming act, it is sufficient to describe the game in the language of the act. But where the charge is for betting at "gaming table, or gambling device, or bank of the like or similar kind, or of any other description, although not named," the indichneorshould aver, in addition to the name, that it was a gaming table or bank similar to one f the games named :n the act, or else that the game was a device "adapt .e d, devised and de . dgued lor the purpose of playing a game of chance, and at which money or property may be won or lost," and so a charge that the defendant bet "up in anti against a cermin gambling device comtuonly called the Tiger," held insufficient. On the trial of au indictment for betting at faro,
JAN. TERM, 1857. STATE V. GRIDER. the court instructed the jury that if they find from overruled it as to the first two. the evidenc that the defet,dant bet up qn a game counts, and sustained it as to the called Tiger,;aud it is essentially different from faro 29Sq in the rules at:d mieciples of the game, a, two latter ; to which the State to make it another game, they should acquit: Held, *excepted. The appellee was r29W that the state h.id no right to complain of the in-arraigned on the first two couuts, struction. pleaded not guilty thereto, and was The rule, that this court will not disturb the verdict of the jury where there is not a total want of tried by a jury and acquitted. evidence to support it, approved. A motion for a new trial was made. Quere. Can the circuit court in any criminal by the attorney for the State, and on cause, after a trial and verdict of acquittal, grant to consideration thereof was overruled by the State a new trial, so as to subject the accused to another trial? Or;ean this court, on reversing any the court ; to which the appellant also criminal case at the instance of the State, award a excepted, setting out all the evidence-second trial? adduced at the trial, which we will Appeal from the Circuit Court of Ran-state as far as material, when we come dolph county. to treat on that branch of the case. It appears also from the transcript HON. BEAUFOR T H. NEELY, that certain instructions were given to Circui t Judge. the jury by the court, and exceptions Jordan for the State. taken thereto by the appellant, which 1Vm. Byers we will hereafter also state when they for the appellee. are particularly and specially con-HANLY, J. The appellee was in-sidered. dicted at the November term of the The cause was brought to this court. Randolph circuit court, for 1854, for by appeal. gaming, under the provisions of the Several errors are assigned, question-. first and third sections of the 3d art. of ing the judgment of the court below in the 51st chap. of the Dig., p. respect to the quashing of the last two The indictment contains four counts, counts in the indictment, as well as as follows: the giving of certain instructions, and The 1st: Charging the appellee the refusal to grant the new trial as with betting a certain sum of money moved for. "upon and'against a certain faro bank, We will proceed at once to consider then and there exhibited," etc. and determine these several questions 2d. Ayith betting a like sum of money raised by the assignment of errors hi "upon a, d against a certain gaining this cause. table then and there exhibited, com-1. Did the court below err in quash-monly called a faro bank," etc. ing the last two comits in the indict-3d. With betting a like sum of money ment? The indictment in this cause "upon and against a certain other gam-was framed under the 1st and 3d sec-bling device commonly called the tions of our gaming act, which are in Tiger," etc. these words 4th. And with betting a like sum of "Sm. I. Every person, who shall sef money "upon and against a certain up, keep or exhibit auy gaming table, other gambling device then and there or gambling device, emunionly called exhibited commonly called ; the Blind A B C, E 0, roulette, rouge et noir, or Tiger," etc. any faro bank, or any other g At the May term, 1855, the appellee table or gambling device, or bank of moved the court to quash the indict-the like or similar kind, or of -any other ment for sundry reasons set out. The description, although not herein court, on consideration of the motion, named, be the name or description
STATE V. GRIDER. VOL. 18 what it may, adapted, devised or de- From the tenor of those decisions, signed for the purpose of playing any these can be no doubt, we think, that game of chance, or at which any money when the charge is for betting upon or property may be won or lost," any of the games named in the first etc. section of the act, all that is required "Sac. 3. If any person shall be guilty to make the indictment effective and of betting any money or other valu- valid, is, to describe the game in the able thing, or any representative of any language of the act itself, as for in-thing that is esteemed of value, on any stance A B C, E 0, roulette, rouge et of the games prohibited by the first noir, or faro bank. But when the section of this act, on conviction," etc. charge is for betting at a "gaming See Digest, p. 366. table or gambling device, or bank of The first section of our gaming act the like or similar kind, or of any other 3001 has, therefore, been very *ably description, although not (in the act) and thoroughly construed by this court named," we hold that the indictment in a series of cases commencing, we should aver, in addition to the name of may say, almost from the date of its the particular device, bank or table, passage, and continuing to the present that the game bet at was a gaming period ; and we know of no case in the table or bank, similar to one of the entire series in which the subject has games specified or named in the act, or been more fully elaborated than in else that the game played at was a Brown v. Me State (10 Ark. 616), in device, "adapted, devised or designed which this court said : "In the first for the purpose of playing a game of class of ollenses in the enumeration, chance, and at which money or prop-the entire motive power and machin- erty may be won or lost." ery of the game consists in the table *In the case before us the in- [*301 its.df, and that in the latter, the name dictment does not aver that the games and whole character of the game are of "T iger" and "Blind Tiger," are directly derived from, and are wholly either banking games or gambling dependent upon the isolated idea of a tables. The word "device" used in the bank, as stripped and disconnected indictment is not sufficiently compre-from that of a table." hensive or potent to designate the In a subsequent case (SUM v. The game bet upon, so as to enable the State, 13 Ark. R. 683), the construction court to determine whether the games of the first section of the gaming act were really banks or tables, they be-again came up for consideration, under longed to that other class of games pro-a state of facts differing somewhat from hibited and punished under the pro-that presented in the case from which visions of the 8th section of the same we have just quoted, in which this chapter of the Digest, which are dif-court said : "Where the betting is erently punished and require different against one of the banking games, it is averments to change them properly. sufficient for the indictment to charge With the view of the law as we ex-that the defendant bet against such pressed it, the conclusion upon our bank or table," etc. And to the same minds is irresistible that the court be-purport are the cases of Drew v. The low did not err in quashing the third State (19 Ark. 82). The State v. Eld- and fourth counts iu the indictment. ridge (12 Ark. 608). Johnson v: The 2d. The next question, which arises &We (13 Ark. R. 684), aud the cases of on the record, is the one growing out the t wo Barkmans (13 Ark. R. 703 and of the instruction which was given to 705.) the jury which tried this cause in the
JAN. TERM, 1857. STATI1 V. GRIDER. court below, and which was ex- did not err in giving the instruction in cepted to by the counsel for the State. question, as far as the appellant is con-The instruction to which we refer is as cerned or affected. follows : "That if the jury should find 3d. As to the third and last question from the evidence that the defendant presented for our consideration and had bet money in Randolph county, adjudication ; did the court below within twelve months ta.-xt before the err in overruling the appellant's mo-finding of the indictment, on or against tion for a new trial? Before proceed-a game of faro, they should find him ing to determine this question we take guilty, and lf they should find that the occasion to remark that we waive any game, against which the defendant bet, opinion as to the question, whether was called by another name, to-wit: the court below could, in any criminal Tiger, and if theyshould believe from cause, atter a trial and a verdict of ac-the evidence that Tiger and faro are quittal, grant to the State a new trial the same game in principle, although so as to subject the accused to another differing in some respects, yet, if the trial, and also, whether this court ever differences do not affect the rules and since the passage of the act of 1846 (see principles of the game so as to make sees. 240 and 241, chap. 52, Dig. p. 423), them, in principle, essentially different allowing appeals and writs of error in games, although called by different certain cases in behalf of the State, on names, they should find a verdict of reversing the judgment of the circuit guilty ; but if they should find from court, can in any case, where them the evidence that the defendant bet has been a regular jury trial, and an upon a game called Tiger, and it is es- acquittal for the defendant, grant a sentially different from Faro in the new trial to the State, and require a rules and principles of the game, so as defendant to undergo a new trial in the to make it another game, they should circuit court ; preferring, as we do, to acquit." By reference to the testi- consider these grave points, only when mony brought upon the record by the they are deliberately made by the coun-appellant's bill of exceptions we think sel, or necessarily arise in the cause we there can be no doubt but that the in- are considering. In the case before us, struction given was not an abstract one, the necessity of a decision upon these but was warranted by the evidence. questions is removed by the result of We are, moreover, of the opinion that our opinion upon the whole record be-the law is correctly laid down in the fore us. Waiving these questions, then, 302 2 ] instruction,*as applicable to the should the court below have granted charge in the indictment, aud the facts to the appellant a new trial? We will elicited upon the trial. It is as favor- not attempt a statement of the evi-able to the State as she could have dence or testimony. We shall content asked. If it is obnoxious to any com- ourselves by simply remarking, that plaint at all, it certainly does not be- there was evidence before the jury con-hoove the State to be heard to com- ducing to show that the game bet at plain against it ; it might with more by the appellee, was not the game propriety come from the other party. of faro, but was a game of a But as we before remarked, we do not different name, and so mate-conceive that any serious objection rially differing from a game of could be taken to it, even by the ap- *faro as to make it a question [2303 pellee, had he seen proper to attempt of identity, in respect to the game, to it, and were in a position to do so. We be determined by the jury in their re-them efore, hold that the court below - turn upon the entire body of facts be-
VoL. 18 fore them. (See James Barkman v. AS'tate, ubi sup. and the cases there cited.) The rule, both in civil and criminal causes, under the facts above . stated, is this: that where the statements of witnesses are contradictory, it is the province of the jury to determine which is entitled to credit, and to find accordingly; and this court will not review the evidence for the purpose of passing upon the correctness of their conclu-Pion as to the weight of evidence. It is sufficient that there is not a total want of evidence to support the ver-diet. See Mains v. State, 13 Ark. R. 285. Funkhouser and wife v. Pogue, Id. 296. Hendrix v. Sharp, same, 306. Stanton v. State, same, 317. Bevens v. State, 11 Ark. 463, and many other cases to the same point. As we regard the case before us as strictly within the rule just laid down, we are forced to the conclusion that the court below did not err in refusing to set aside the verdict and grant the appellant a new trial. Finding upon the entire record no error of which the appellant had a right to complain, the judgment of the Randolph circuit court is therefore in all things affirmed. Cited:-22-243; 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.