A storehouse in a village, late at night, after persons cease to come to the store to purchase goods, and the door is locked, This was a presentment in the Circuit court of Cabell county, at the September term 1848, against Everett 1851. December Term. 1851. December Term. Feazle's ('ase. Feazle, for unlawful gaming, by playing at a game of cards in the storehouse of Irvin Lusher, a public place in the county of Cabell. The defendant pleaded "not guilty"; and on the trial the jury found a special verdict as follows: That the defendant, some time in the month of March 1848, did play at a game of cards, in company with others, in the town of Barboursville, in the county of Cabell, at the storehouse of Irvin Lusher, mentioned in the presentment; that the persons engaged in playing at the time had gathered together late in the evening at the said storehouse, and sat about the fire until the customers had retired, and until it was believed that no person would come that night for the purpose of trading; and until the tavern across the street had been closed, and the people in town had gone to bed. The door and windows being closed, some person having proposed a game, the door of the storehouse was locked, the key-hole stopped, and every place through which it was supposed light might escape or be seen outside of the house was closed, and a blanket or other cloth was thrown over the box upon which they played so as to prevent noise. At the time of the playing said Irvin Lusher had in his storehouse spirituous liquors, crackers, cheese, raisins, &c., and the persons playing would draw liquor and drink it, and take crackers, &c., and eat them, without asking for them; he being present and not object. ing. And the said Irvin Lusher refusing to take any pay for the things thus taken, and also furnishing candles and fuel, the persons engaged in playing withdrew money from the common stock, and gave it to him for the light and fuel. Through the spring and winter of 1848, before the playing mentioned in the presentment, sundry persons had gone to said storehouse, and there played at cards three or four times: And at these times the doors, win dows, &c., were closed in the same manner as before mentioned. On the night when the defendant played as above stated, when the proposal to play was first made Lusher objected, on the ground that it was too early in the night; that persons might be up who might desire to come into the house. Upon this special verdict the court, with the consent of the defendant, adjourned to this court the following questions: First. From the foregoing facts, is the place at which the playing took place a public place, within the meaning of the law to suppress gaming? Second. What judgment ought the court to give on the special verdict? LOMAX, J. delivered the opinion of the court. The court is of opinion that the place in the proceedings mentioned is not a public place, within the meaning of the law to suppress gaming. 2d. That judgment should be rendered on the special verdict in favour of the defendant. FIELD and ESTILL, J's, dissented. 1851. December Term. Feazle's Case. 1851. December Term. COMMONWEALTH V. HALL. December 6th. A license to one man to keep a tavern at his house in a village will not authorize another, who formed a partnership with the first in the sale of the spiritous liquors, which the first was authorized to sell under his license, to sell liquors at a house on the same lot and within the same enclosure with the tavern. This was an indictment in the Circuit court of Gilmer county, at its September term for 1850, against Hannibal Hall, for selling by retail ardent spirits without a license. The first count in the indictment charged the selling to be drank at the place where sold; the second charged it not to be drank where sold. The parties agreed the facts, and submitted the question of law arising thereon to the court. The facts were, that on the 29th of May 1849 the County court of Gilmer granted a license to Thomas Marshall to keep an ordinary at the house where he was then living, in the town of Glenville, until the May term of the County court 1850. Under this license Marshall commenced and kept an ordinary: the liquors were kept, sold and drank in a small building on the same lot, and in the same enclosure in which the main building was situated, and about ten feet from it. On the 8th of December 1849 Marshall and the defendant, by an agreement. under seal, formed what is termed in the agreement a partnership in the bar attached to the ordinary, by which, in consideration of the amount that Marshall had paid for the license to keep an ordinary and for the rent of the small building, the defendant bound himself to furnish and keep constantly on hand a supply of liquors suitable for the customers of said ordinary: And the profits were to be divided in proportion to the sums advanced by each party. On the 1st of March 1850 the County court, with the consent of Marshall, transferred his license to Stephen W. Ratcliff, who had rented and removed to the property occupied by Marshall as an ordinary. On the 11th of April Ratcliff and the defendant entered into an agreement in all respects like that between Marshall and the defendant; and on the 12th day of April the defendant sold liquors by retail at the small building above described as being the place where Marshall had kept and sold liquors. With the consent of the defendant the Circuit court adjourned to this court the following question: What judgment ought this court to give on the facts agreed? BY THE COURT: Judgment ought to be given against the defendant for 30 dollars and the costs. 1851. December Term. Hall's Case. COMMONWEALTH v. MCKINNEY. December 8th. 66 An indictment for a wilful trespass was against Joseph McKin- 2d. The court cannot alter the record so as to make it This was an indictment for a wilful trespass to personal property in the Circuit court of Preston county; and the facts were agreed as follows: At the September term of the court for 1850 an indictment for a 1851. December Term. |