1851. December

Term.

McKinney's Case.

wilful trespass to personal property, against Luke McKinney, John McKinney and Joseph McKinney, was sent to the grand jury; which indictment they returned to the court with the following endorsement:

"Commonwealth v. Luke McKinney, Thomas McKinney and John McKinney."

"Indictment for wilful trespass to personal property. A true bill.

"William Royse, Foreman."

The record of the court set out that: The grand jury adjourned on yesterday appeared pursuant to the order of adjournment, and retired to their room; and after some time returned into court, and presented an indictment against Thomas McKinney, Luke McKinney and John McKinney for wilful trespass to personal property—a true bill.

A writ of venire facias was issued against the parties, which was served on Luke, John and Joseph McKinney; and thereupon Joseph McKinney appeared and moved the court to quash the said indictment as to him, or to set aside the service of the venire facias upon him, and discharge him from further prosecution. in this cause, for want of any sufficient record of the finding of a bill of indictment against him. Whereupon the court, with the consent of the said Joseph McKinney, adjourned to this court the following ques

tions:

1st. Whether the said record of the finding of an indictment against Luke McKinney, Thomas McKinney and John McKinney is a sufficient record of the finding of a bill against the said Joseph McKinney to put him to answer the same?

2d. What is the legal effect of the variance between the record of the finding of said indictment and the indictment itself?

3d. Is it competent for the court, by an order now to be made, to correct the error in the record of the finding of the said bill, so as to make the same conform thereto, and to cause the said prosecution to proceed against the said Joseph McKinney with or without further process against him?

4th. Ought the court to quash the said indictment as to the said Joseph McKinney, or to set aside the service of said venire facias upon him, and discharge him from further prosecution in this case?

5th. What judgment ought the court to render in the premises?

FIELD, J. delivered the opinion of the court.

The court is of opinion and decides that the sheriff's return of the venire facias as to Joseph McKinney should be quashed, and the said Joseph discharged from further prosecution upon the indictment, because it does. not appear from the record that the said Joseph has been indicted; and it is not competent for the court to alter or amend the record in that respect. Cawood's Cuse, 2 Va. Cas. 527, and others referred to in 3 Rob. Pr. 98.

We deem it unnecessary to decide any other question.

1831. December Term.

McKin

ney's

Case.

1851. December.

Term.

COMMONWEALTH v. SHELTON & others.

December 11th.

Betting on a horse race is not within the meaning of the 5th section of the 10th chapter of the act of the 14th March 1848, concerning crimes and punishments, and proceedings in criminal cases.*

At the October term for 1849 the grand jury for the county of Cabell presented Jerome Shelton, Ballard McComas, David Shelton, Rowland Bias, Johnson Lusher and Thomas A. Childers for unlawful gaming, by betting on a horse race, at a race field on the lands of Thomas McComas, in the county of Cabell.

The prosecution against Bias was dismissed; and when the trial of the other defendants came on the jury found a special verdict as follows:

That some time within twelve months before the finding the presentment in this cause, a horse race was run in a field belonging to Thomas McComas, in the county of Cabell, for twenty or twenty-two dollars; that one of the horses belonged to one Ray and the other to a man named Hodge. That the agreement to run the race and the amount for which it was to be run was agreed upon at the house of Andrew McComas, about a mile distant from the place where the race was run, and on the opposite side of the river. That David Shelton made the agreement for the bet, and

*That section is as follows: Any free person who at any ordinary, race field, or public place, shall play at any game whatever, except bowls, chess, backgammon, draughts, or any licensed game, or bet on the hands or sides of others who do play, shall be punished by fine of thirty dollars, and give security, in such sum as the court may require, to be of good behaviour for twelve months; but no person shall be imprisoned in default of such security more than three months."

was interested in the race one fifth of the amount of

the bet for which it was run.

1851. December Term.

Case.

That about a month previous to the time of running Shelton's the race above referred to, a like race was run at the same place, for the sum of fifty dollars, in which the defendant Ballard McComas agreed to become interested to the extent of one third of the bet. This bet was also made at the house of Andrew McComas.

That at another time a third horse race was run at the same place, by the defendants Thomas Childers and Johnson Lusher, for the sum of one dollar; which bet was also made at the house of Andrew McComas. That these bets were all made and the races run within a year before the finding of the presentment in this That all the defendants were on the ground at the time when the several races were run. There was a verdict in favour of Jerome Shelton; and as to the other defendants the question was submitted to the court upon the special verdict.

case.

With the consent of the defendants the Circuit court adjourned to this court the following questions:

1st. Is betting on a horse race gaming, within the meaning of the 5th section of the 10th chapter of the act of 1848, passed March 14th, 1848, entitled an act to reduce into one the several acts concerning crimes and punishments and proceedings in criminal cases?

2d. If not included in the 5th section, is betting upon a horse race included within the meaning of the 6th section of the 10th chapter of said act?

3d. If betting upon a horse race be indictable upon either of said sections, is a person interested in said race to a less amount than 20 dollars, where such bet exceeds that sum, guilty of unlawful gaming or wagering.

4th. Where the presentment charges, as in this case, that the betting took place at the race field, is the presentment sustained by proof of a betting at another and different place?

VOL. VIII.-38

1851. December

Teriu.

Shelton's

Case.

5th. If the case set out in the presentment be unlawful gaming as aforesaid, is proof that one of the defendants agreed to become interested, without proof that he staked any money, sufficient to sustain the presentment on that point?

6th. What judgment ought the court to render in the premises?

on

LOMAX, J. delivered the opinion of the court. The presentment charges that the defendants, the 1st of August 1849, at a race field on the lands of Thomas McComas, in the said county of Cabell, unlawfully did game by betting on a horse race then and there run over the paths in said race field, contrary to the form of the statute," &c.

The 5th section of the 10th chapter of the act passed 14th March 1848, entitled an act to reduce into one the several acts concerning crimes, &c., enacts as follows: "Any free person who at any ordinary, race field, or public place, shall play at any game whatever, except bowls, &c., or bet on the hands or sides of others who do play, shall be punished by fine of 30 dollars, and give security," &c.

The first question in the case adjourned submits to this court the consideration whether "is betting on a horse race gaming, within the meaning of the section which has just been quoted." And the answer to it must depend on this, whether a horse race is a playing at a game, so that betting upon the race is a betting on the hands or sides of others who do play.

In the construction of the English statute, 9 Ann, ch. 14, for preventing of excessive and deceitful gaming, it was held by the courts in England that the word games used in that act comprehended horse races. That statute was understood, as it would seem, to comprehend the games embraced by the preceding statute of 16 Car. 2, ch. 7, which was entitled an act against de