
    *Roberts and Another v. Commonwealth.
    December, 1840.
    Gaming: — Presentment—Allegations—Public Place — A presentment “for unlawfully playing cards at the grocery of D. and C.” is defective in substance, for not alleging the grocery to be a public place, or a place of public resort.
    In the county court of Amelia, at August term 1837, the grand jury made a presentment in the following terms: “We present Jacob Roberts and William Ligón for unlawfully playing cards at the grocery of Alfred R. Deaton and William B. Chapman, in the county of Amelia and within the jurisdiction of this court, within three months last past. Information by Josiah C. Jones, one of our body, sworn in open court. ’ ’ The defendants moved the court to quash the presentment; which motion being overruled, they pleaded not guiltjr; and a trial being had at March term 1839, the jury returned a verdict finding them guilty. They thereupon moved the court to arrest the judgment, on the ground that the presentment did not allege the grocery of Deaton and Chapman to be a public place. This motion also being overruled, and judgment rendered against the defendants for a fine of 20 dollars each and the costs of the prosecution, they applied by petition to the -judge of the circuit superior court of Amelia, for a writ of error; which was awarded.
    At October term 1840, the circuit court, with the consent of the plaintiffs in error and of the attorney for the commonwealth, adjourned to this court the questions, 1. Is the presentment of the grand jury sufficient to justify the judgment of the county court? 2. What judgment ought the circuit court to pronounce?
    
      
       Gaming — Presentment—Allegations—Public Place-—A presentment for playing at cards must charge that the place at which it occurred was a public place at the time of such playing ; the name of the place not of itself impoi ting that it.was at all times a public place. Bishop v. Com., 13 Gratt. 785, 787, citing the principal case and Hord’s Case, 4 Leigh 674, as its authority. For further cases in point, see foot-note to Bishop v. Com., 13 Gratt. 785; mon-ographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917.
      Indictment — Effect of the Word “Unlawful.” — The words “unlawful” or "contrary to law” in an in dictment serve to preclude all legal cause of excuse for the act imputed, but never to enlarge or extend the force and effect of the terms employed to describe it so as to make the act unlawful when it does not appear to be so by the description itself. Bishop v. Com., 13 Gratt. 787; Huff v. Com., 14 Gratt. 651, both citing the principal case as authority. See further, monographic note on “Indictments, Informations and Presentments" appended to Boyle v. Com., 14 Gratt. 674.
      Informations — Allegations.—In Com. v. Guigon, 1 Va. Dec. 597, 599, the principal case, Hord v. Com., 4 Leigh 674, Com. v. Israel, 4 Leigh 675, Clark’s Case, 6 Gratt. 677, and Bishop’s Case, 13 Gratt. 786, were cited as authority for the proposition that an information is fatally defective which fails to allege all the facts and circumstances necessary to constitute the offence with which it is sought to charge the accused. See further, monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   SMITH, J.,

delivered the opinion and judgment of the court. — The court is unanimously of opinion that the presentment in this case is defective in substance, in not stating that the place where the playing cards is "'alleged to have been committed was a public place, or place of public resort: and it is deemed unnecessary to enquire or decide whether there is any other defect in the said presentment. The court is therefore of opinion and doth decide, 1. That the presentment is not sufficient to justify the judgment of the county court. 2. That the circuit court ought to reverse the judgment of the county court, and, proceeding to give such judgment as the county court ought to have given, to «quash the presentment.  