
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1806.
    State v. Brice.
    Indictment lies for the penalty for permitting and encouraging persons to play at prohibited games in the dwelling house, &c. contrary to the act of 1802; although it be not expressly alleged that the house was kept for the purpose of gaming, and that games were played therein.
    Motion in arrest of judgment. Indictment tried before Judge Bat, in Union district. The indictment was for the penalty under the act to prevent gaming, passed in 1802. The indictment charged the defendant with permitting and encouraging in his dwelling house, W. L., &c. &c. to play at cards, dice, &c,
    Nott, in support of the motion,
    contended, that the offence laid was not such a one as is described by the act of 1802. That the act was made to prevent gaming, and prohibits, — 1. Playing at the several games specified. 2. Betting on the sides or hands of those who shall play. 3. Keeping a gaming house, or place for the pur. pose of gaming. The indictment does not state that the defendant kept his dwelling for gaming purposes, or that it was his practice to allow persons to game therein ; but only that he encouraged and permitted certain persons to play therein, without asserting that they ’ did actually play therein. Penal statutes must be construed strictly. “Permit and encourage” are not words used in the act.
    Staeke, Solicitor, against the motion,
    insisted that the offence was sufficiently laid within the words and intention of the act; and the act being in suppression of a public mischief, ought to be bene~ ficially and liberally expounded.
   28th April, 1806. The opinion of

Grimke, Waties, Teeze-vant, and Wilds, Justices,

was, that the motion ought not to prevail, and that the indictment was sufficiently certain and consistent enough with the act of assembly.

Brevaed, J.,

dissented. The act is vaguely penned. It subjects the offender to the penalty of fifty dollars for either playing at any of the prohibited games, or betting on the hands of those who shall so play, or for keeping a tavern, or other place to accommodate persons so playing, and actually accommodating them therein. It seems to me, that the offence is not committed by the keeper of a tavern, die. unless he makes a practice to accommodate gamesters, who actually do game in his house, booth, &c. The legislature could not intend, that for a casual game being played in a man’s house, he should forfeit the penalty,

la the present case, the indictment is not expressed in the Ian-guage of the ael, but in words descriptive of a different offence. Permitting and encouraging, does not necessarily imply that those so permitted and encouraged, did actually play at cards, &c. “ In his dwelling house,” may be construed to relate to a distant house, and not where the parties are, when the permission and encouragement is given, as well as to a place where gaming is actually going on; and one may permit and encourage another to play, and that other may decline playing.'

It does not necessarily follow, that because persons were permit, ted and encouraged to play in the defendant’s dwelling house, that they did play therein ; and if they did not play therein, was the of-fence intended to be created by the act as to keepers of taverns, &e. committed, and the penalty forfeited?

In the first place, I think the offence is not expressed with sufficient certainty, consistently with the true meaning of the act; and, secondly, I think although the offence intended by the act may be understood, and gathered by construction from the indictment as worded, yet, inasmuch as the language of the act is departed from, and other words employed, which may imply an offence different from that which was intended to be created by the act, the indictment is defective and insufficient. Therefore, I am of opinion, the judgment ought to be arrested.  