
    H. Randolph v. The State.
    The rnlo which requires criminal statutes to be construed strictly applies to those only of a highly penal character, not to mere misdemeanors.
    Statutes should not in any cases be so strictly construed as to defeat the obvious intention of tho Legislature.
    Tho words ot tho statute against gaming, “or any other banking game,” &c., must have their intended oift'Ct; and consequently an indictment will lie for betting at any banking game, naming it, although it be not enumerated in the statute.
    Hondo, as played in this case, was proved to be a banking game.
    This caso distinguished from Crow v. The State, G Tex. It., 334.
    Appeal from Walker. The appellant was convicted of betting “at a certain “ bank called rondo, the same being then and there exhibited for gaming.” The proof was that tiie defendant did bet at a game called rondo; that one man held the stake, and the bet was against his pile; that it was played with small balls on a billiard table. Thomas Cotton, senior, being sworn, said that he understood this game; that it was called rondo; he had seen it played in New Orleans; that when one man held the stakes and the others bet, it was a hanking game; that it might he played so as not to he a banking game. James iloore testified that "ho did not understand it to be a banking game, as played at Huntsville. There was a motion for a new trial on the facts, and a motion in arrest of judgment on the law.
    A. P. Wylie, for appellant.
    The bill of indictment is founded on article 55G, (I-Iart. Dig., p. 213,) which received a construction at tho hands of this court at Tyler, during the Spring Term, 1851, in the esc of The State v. Crow, in which liie doctrine is clearly laid down that an indictment cannot he sustained for betting at a game upon ten-pin alleys or billiard tables; and as the proof shows that this game was played with balls on a billiard table, it comes both within the reasoning and letter of that decision. It would seem to be wholly immaterial, under the ruling in that case, whether tho game of rondo is to he considered a hanking game or not; for it is there expressly laid down that it is not indictable to bet at any banking game, except those menrioued and specifically prohibited by the statute; and as the game of rondo, although well known, is not mentioned and specifically prohibited by the statute, it follows that an indictment will not lie for betting on that game.
    
      
      Attorney General, for appellee.
    The indictment, although assailed on a motion in arrest, is unquestionably good, being in the terms of the statute. (Hart. Dig., arts., 1476, 1477.) Motion for a new trial on the facts, no question of law being raised. Not only is there some evidence to support the verdict, in tlie sense of Carter v. Carter and that class of cases, but it greatly preponderates in favor of tlie verdict. Tlie question turns upon liie fact whether or not rondo is “a banking game,” and that is.settled by tlie learned testimony of Charles Cotton, on the grounds that one man held the stakes “and the others bet at his pile.”
    The defense is mainly based upon the reasoning of the court in tlie ease of Crow v. The State, G Tex. R., 334; but that case is not in point here, as there is no attempt to show that the game here played belongs to a billiard table, and is thereby licensed.
    Tills case is not presented by the State as an instance of “ a gaming device,” but of “a banking game,” “of the like kind” with those mentioned in the statute by name, and therefore the reasoning in Crow v. The State on tiiis point does not apply.
   Wheeler, J.

The appellant was indicted and convicted under articles 1477 and 1486 of the digest. Tlie indictment charged that tlie defendant did bet “ at a certain bank called rondo, the same being then and there exhibited for gaming.”

It is objected to the sufficiency of tlie indictment that as “rondo” is not named in the enumeration of banking games prohibited by the statute, it cannot be included within tlie general terms “ any other gaming table or bank,” or “any other gambling device,” as one of the inhibited banks or games.

It is true that penal statutes must be construed strictly, and very great strictness has been observed in the construction of those of tlie most highly penal character, as in (lie familiar instance given by Biackstoue of tlie construction of tlie statute of 14 Geo. II., c. 6, which made the stealing of sheep or oilier cattle felony, without the benelit of clergy. These general words “or other cattle” were looked upon as too loose to create a capital offense, and tlie act was held to extend to nothing but sheep. This strictness, however, was adopted in favor of life; and it lias never been observed in the construction of statutes enacted for the punishment of mere misdemeanors, or those minor offenses which are not punished with great rigor. It lias been said by very high authority, and such is the uniform language of the courts, thac though penal statutes are to be construed strictly, tlicy are not to be construed so strictly as to defeat tlie obvious intention of liie Legislature. Tlie words of a statute arc not to be narrowed to tlie exclusion of cases which those words, in their ordinary acceptation, or in Chat sense in ivliieh tlie Legislature liad obviously used them, would comprehend. (5 Wheat. R., 76, 04.)

In construing statutes, penal as well as others, an interpretation must never bo adopted that will defeat the purpose for which the enactment was obviously intended. (9 Wheat. R., 381.)

That such would be the effect of adopting the construction contended for on behalf of tlie appellant cannot he doubted. Hew names for the games intended to be prohibited by the statute could be devised and substituted without limit; and thus not only the present but any future statute which might be enacted for the prevention of like offenses might be evaded. Such a construction would defeat the obvious intention of the Legislature, and is therefore inadmissible.

We are referred to our opinion in the case of Crow v. The State, 6 Tex. R., 334. Tlie decision in that case rested on the conviction, clearly expressed in tlie opinion, that tlie supposed offense charged in tlie indictment did no* come within either the language or intention of tlie Legislature. The offense described in the present indictment manifestly is (hat'which tlie Legislature intended to prohibit. The present, therefore, is plainly distinguishable from the case cited. That case sanctions no such principle as that the table on which tlie game is played will necessarily give character to the game, or that the having resorted to a billiard table on which to play a banking game will render ¡lie playing less criminal in tho eye of the law, or will afford an immunity to those who resort to this as a device by which to evade the consequences of its violation.

We are of opinion that the indictment describes an offense within the manifest inceution aud meaning of the statute, and that the verdict was warranted by the evidence. The Judgment is therefore affirmed.

Judgment affirmed.  