
    Howlett vs. The State of Tennessee.
    , All persons aiding, assisting, and encouraging the playing at cards for money, or other valuable thing, though they may not bet, are guilty of gaming under our statutes, and are to be considered principals.
    The'promoting and encouraging the playing of cards, when money is betted, though the individual indicted did not bet, is an indictable offence within the meaning of our statutes against gaming.
    The indictment in this case charges that the defendant below played and betted at cards, and encouraged and promoted the playing and betting at cards for money and other valuable things. The defendant below pleaded not guilty. The verdict of the jury was - special, and found the following facts, to wit: “ That the defendant did not bet any money, or other valuable thing, but that he did play and encourage the playing for money and other valuable things, with those other persons named in the indictment, knowing that they had betted,” &c. The defendant, by his counsel, moved the court to arrest the judgment upon this finding of the jury, assigning as a reason for the arrest, that the facts found by the jury did not create an indictable offence. The court having overruled said motion, and given judgment upon said finding, the defendant prayed an appeal in the nature of a writ of error to this court.
    
      J. S, Yerger, for the plaintiff in error.
    At the common law; neither gaming, nor the promoting of gaming, was an indictable offence; but on the contrary, was legal, if there was no cheating and fraud. 1 Russell on Crimes, 593.
    
      In this state it remained as at the common law, until t , . . . . , , . ' / , „ 1799. In that year the legislature by their act, (ch. 8, sec. 2, 1 Scott’s Rev. Law, 639,) declare, “That if any person or persons shall encourage or promote any match or matches, or shall play at any match or matches, at cards, dice, billiards, or any other game of hazard or address, for money or other valuable thing, every such person so offending, shall upon conviction thereof, before any justice of the peace of the county wherein said of-fence was committed, forfeit and pay the sum of five dollars for every such offence,” &c.
    This act of assembly only imposed a penalty, and did not subject the offender to an indictment. It makes no provision for the recovery of the penalty, whether it should be by indictment or action qui tcm; and the penalty belonging to the state, can only be recovered in an action of debt in the name of the state against the offender, before a justice of the peace, that being the jurisdiction before which the conviction must be had. Es-pinasse on Penal Actions, 8, 9: 2 Strange’s R. 82S.
    This act has done nothing more than to subject two classes of cases, which were legal before, to the same penalty, without making the offences indictable, to wit: 1st. The playing and betting money at cards, or some other game of hazard; and, 2nd. The merely encouraging and promoting it, without betting on the game; as standing by, or assisting in the play, &c. Thus making both the player and encourager principals, so far as this act is concerned, in their liability to the penalty imposed by the act.
    • The legislature again in 18Ó3, legislate upon this same subject, and in that year by their act, (ch. 12, sec. 1, 1 Scott’s Rev. Laws, 776,) declare, by way of amendment to the act of 1799, “That all fines and forfeitures that may have arisen, or that may hereafter arise by virtue of the above recited act, shall be applied, one half to the use of any person who will sue for the same, the other half to the use of the county wherein such offence shall be committed, to be recovered by action of debt before any tribunal having cognizance thereof.” Now, at the passage of the above act, a justice of the peace had exclusive jurisdiction of the offences of playing at, or the encouraging or promoting the playing at cards, as enumerated in the act of 1799, ch. 8; consequently the act of 1803, ch. 12, sec. 1, did not give jurisdiction to any of the Superior courts, but only pointed out the form of action to be used under the act of 1799, and therefore the penalty given by that act could only be recovered before a justice of the peace in the form of action pointed out by the other act, no other court having jurisdiction or cognizance of the offence. Esp. on Pen. Actions, 21, 22, 58: 5 East’s Rep. 313.
    The first section of the act of 1803, ch. 12, extends to both-classes of cases mentioned'in the act of 1799, ch. 8, sec. 1.
    After this enactment of the first section, the legislature proceed further with the subject, and in the second section of the act of 1803, ch. 12, make the playing and betting money at cards, or other games of hazard, an indictable offence. This is the first provision in any of our statutes making the betting, at cards, or other gaming, an indictable offence; and this section is evidently a further and accumulative punishment upon one of the classes of cases mentioned in the second section of the act of 1799, ch. 8, to wit, the betting money or other valuable thing; leaving the other class, to wit, the encouraging and promoting gaming, in the same condition they were under the first section of the same act; and that was, subject to an action of debt for the five dollar penalty. So the very words of the second section read; it declares, “That any person who shall play within the meaning of the above recited act, shall be further liable to be indicted or presented by the grand jury of the county in which .such offence shall or may be committed; and it shall be the duty of all or any of the citizens of the different counties in this State, at the next court after such offences may have been committed, to forthwith make information to the grand jury; and it shall be the duty of the grand jury to make the presentment; and the person against whom such presentment shall be made, shall be liable to answer thereto, notwithstanding any informality in any of the said presentments or indictments, and on conviction, shall be liable to be fined in a sum not less than five nor more than fifty dollars.” This section omits the second class of cases mentioned in the second section of the act of 1799, ch. 8, and being .omitted cannot be supplied. 6 Term Rep. 286.
    That this second class is omitted, and the other class embraced, is evident from the words of these acts of assembly. The legislature have drawn the distinction between the cases, and by the cumulative penalty attached to one, in exclusion of the other, have repudiated the common law rule, that all persons present, aiding and abetting in the perpetration of a misdemeanor, are principals, and leave the cases of encouraging and promoting gaming clearly not indictable under these acts. 2 Burrow’s Rep. 806
    I will now examine the rule of the common law applicable to this subject, to see if a case not indictable under it, but made penal by a statute, and subject to be proceeded in by action of debt qui (am, can be made indict-. able by construction; and then the act of 1817, ch. 61, sec. 2, the only remaining act of the legislature necessary to be looked to upon this subject, and under which this offence is attempted to be made indictable.
    Then as to the legal effect of the act of 1799, ch. 8, sec. 2, and the act of 1803, ch. 12, sec. 1.
    I have already said, that at the common law neither of the offences enumerated in these statutes, was indictable. This being the case, the rule of law operating upon the cases under these acts, is this, that when a statute creates 3 new 01®,ence by prohibiting and making unlawful any thing which was lawful before, and appoints a specific remedy against such new offence, not antecedently unlawful, by a particular sanction, and particular method of proceeding, that particular method óf proceeding must be pursued, and no other. This is a new offence; a particular sanction, a particular method, and a particular jurisdiction are appointed to try it; and under the above rule of law and the acts of assembly above mentioned, the offence must be proceeded in and tried in that particular method, and before that particular jurisdiction mentioned in the acts of assembly creating the offence, and cannot be proceeded in and tried by indictment in the circuit court. Castle’s case, Cro, Jac. 643: 5 Salk. Rep. 189: 2 Ld. Ray. 991: 2 Burrow’s Rep. 803, 806: 2 Cowper’s Rep. 524: 2 Strange’s Rep. 679, 1256: Virginia Cases, 133: 1 Nott and M’Cord’s Rep. 22.
    Having shown that as the statutes stood in 1803, the offence of encouraging and promoting unlawful gaming was not'indictable, but that the betting and playing for money, or other valuable thing, alone was the subject of indictment, I will now examine the act of 1817, ch. 61, sec. 2, to see if there be any provision in that act authorizing a proceeding by indictment.
    That act in its second section, (2 Scott’s Rev. Laws, 351 and 352,) declares, “And all offences against the laws enacted to suppress gaming, are hereby declared to be cognizable in the circuit courts.” ■
    The first question that presents itself for consideration upon this clause of the act, is this: How are all offences against the laws enacted to suppress gaming, cognizable in the circuit court? I answer, in the particular mode and method pointed out in the provisions of the previous acts of assembly upon that subject. If I am right in this position, the offence of encouraging and promoting gaming, is cognizable in the circuit court only, upon debt brought for the penalty; the offence of betting and playing for money, or other valuable thing, upon debt brought for the penalty under the second section of the act of 1799, ch. 8, and by indictment under the second section of the act of 1803,-chap. 12. The jurisdiction before which the offence of encouraging gaming was triable under the previous acts, is changed by the act of 1817, ch. 61, sec. 2, but no new penalty, no new method of proceeding is given, no indictment or presentment is authorized to be preferred. It is punishable only in the same mode and method pointed out by the previous acts of assembly, but by a different tribunal, as will be seen by a reference to the authorities cited above. .
    Suppose an act of assembly be passed, declaring that when any person shall be convicted of playing at Bragg, he shall be fined one hundred dollars, to be recovered by action of debt before the county court; and that when any person shall play at Billiards, he shall be fined two hundred dollars, and be liable to be indicted, and these are new offences; then another act of assembly is passed, saying that all cases mentioned in the preceding law shall be cognizable in the circuit court; will this authorize an indictment for playing at Bragg? Surely not. The circuit court would have jurisdiction of both cases, but only in the manner pointed out under the previous lav/, which would be by action of debt, for the penalty in the one case, and indictment in the other.
    Again: suppose this case; an act of assembly is passed giving an action of trespass for an assault and battery, an action of debt for slander, and an indictment for a libel, and these are all new subjects of action, and the jurisdiction to try them given to the county court, except the action of debt, which is triable before a justice of the peace; then a subsequent act is passed declaring that all offences and causes of action in said act contained, shall be cognizable in the circuit court; would this make slander, assault and battery, indictable offences? Surely not. The jurisdiction would be changed, but the form and method of proceeding must be had according; to the law ■ creating the causes ox action and offences, ouch is the case before the court.
    It might be urged with much reason, that the words “all offences,” used in the act of 1817, ch. 61, sec. 2, upon a fair construction of all the statutes upon gaming, mean such offences only as are indictable, and do not give that court jurisdiction of such offences as are the subject of actions qui tarn; but this is not necessary in this case. If the circuit court has cognizance of the offence of encouraging and promoting gaming, it can only be by an action of debt for the penalty under the act of 1803, ch. 12, sec. 1, as the act of 1817, ch. 61, sec. 2, authorizes no new mode of proceeding to be had.
    
      Geo. S. Yerger, argued on the same side.
    
      A. Hays, Att’y. G-en’l. of the 7th Sol. Dist. for State.
   Peck, J.

delivered the opinion of the court.

The charge is, “that Sterling Whittemore, Isaac H. Howiett, David Watson and one other, late of the county aforesaid, with force and arms, at the county aforesaid, upon the first day of November, in the year of our Lord, 1832, did encourage and promote a certain unlawful game and match at cards, for two waistcoat patterns, which said waistcoat patterns were of the value of 37 1-2 cents each; and then and there did play for and bet said waistcoat patterns at said game of cards.”

The jury found a special verdict, “that the defendant played cards with two others, but he did not bet or play for money or other valuable thing himself, but he knew that two others of the persons who were playing, did bet for two waistcoat patterns, which were then and there valuable things. Now, if the law upon this state of facts be in favor of the State, they find the defendant guilty. But, if it be in favor of the defendant, they find him not guilty. ” Upon this finding, the court gave judgment for the State. Writ of error to this court.

It is insisted, that this, if to he taken as an offence, is covered by the act of 1799, ch. 8, sec. 2, and by no other; and this section providing for the punishment by a fine of $5, in summary proceedings before a justice of the peace, the circuit court had no jurisdiction of the offence in this form; that if jurisdiction be given to the circuit court by the act of 1817, ch. 61, sec. 2, by these words, “and all offences against the laws enacted to suppress gaming are hereby declared cognizable in the circuit courts,” that it must be exercised as if before a justice under the first mentioned act of 1799, by an action qui tam for the penalty.

To answer this argument, it is only necessary to repeat what the court has had occasion often to say upon cases brought before us for the offence of gaming, that all the acts passed upon the subject, are to be taken together as one law; seeming discordances are to be reconciled, and the law, if possible, construed so as to stand and be consistent with the duty to he performed by the court. The fourth section of the act of 1817, contemplates an indictment; but the act of 1824, ch. 5, sec. 2, by the very words, makes all offences “of unlawful gaming indictable.” The language is, “it shall be the duty of all grand juries to make diligent enquiry concerning all offences of unlawful gaming, may send for witnesses, and cause them to give evidence of such offence or offences as may he known to him or them, against any of the statutes of this State to suppress and prevent gaming.”

After a general jurisdiction is given to a court, (not a judge or justice,) the enquiry naturally follows, how shall it be exercised? On this point the law and constitution stand together; the' inquisition and the jury trial follow as a consequence; a grand jury is not only an auxiliary to the court in making enquiry, but is supposed t0 come with the evidence of offences in its own body, and by presentment bring the offence to the notice of the court.

If the judge, sitting as a court, had exercised a summary jurisdiction touching this offence, it certainly would have been objected, that the judge in his seat had not been transformed into a justice to issue his warrant, hear and weigh the evidence, draw conclusions, and make up a summary conviction, as an appeal would lie from a judgment if given by a justice under the act of 1799, and a jury trial follow as a consequence. To whom would the appeal lie, if the judge-holding the circuit court had given the judgment? A writ of error might lie to this court upon the conviction, but the jury trial wotdd be taken away: and it is equally clear, that if the action qui tam was'intended to be given, that express words were necessary to have created the transfer of forum; for we hold it to be law, that, express provision is necessary to give jurisdiction, and even if inference could be applied, it would be unnatural to suppose that there had been a change of forum to accommodate either the informer or the promoter of gaming, and that the time of the court should be occupied in gravely trying actions of debt under a penal statute where the State, if she succeed, gains $2 50; but if she loose, pays in costs ten times the sum, if the informer should prove insolvent.

Having heretofore held that these acts, as they provide, shall be construed as remedial statutes to suppress the 'offence, we will not abandon that resolution; and there is enough in the language of them to entertain the indictment without strained construction. He who plays, is self .tempted into the- debauch, • and if innocent of the betting, it is still a crime if countenance be given to such as may.

In the case of the State.vs. Smith and Lane, determined in this court, (2 Yerger’s Rep. 273,) the very point is settled; a majority of the court say, “it is insis-tea that those who encourage and promote gaming, are not subject to indictment under the act of 1803. This is clearly a mistake, for two reasons. Let us put a case: say four persons set down to play loo; one of the parties bets nothing himself, hut plays for another: here he who plays encourages the match without betting. To adopt the construction contended for, neither are indictable; still in point of fact, both are guilty of gaming. In offences inferior to felony, there are no accessaries; all concerned are principals.” On examination the indictment in that case is in the very words used in the one before us. So too the finding, which is special, is substantially the same.

As far as this part of the case of Smith and Lane goes, there was no dissent in opinion; and it is even possible (as to the balance) that the dissenting member, had he understood the mysteries of this occult act, might have seen how the holder of an undrawn and consequently blank lottery ticket, was a gambler, or at least promoter of a match or game against the statute, though he knew none of the others concerned.

There is no error in the judgment of the court.

Judgment affirmed.  