
    The State, v. Wallace Waters.
    In an indictment for gaming, to subject tho defendant to the pecuniary penalty under the Statute, it is necessary, on the part of the State, to prove the offence to have been committed within six months before the commencement of the prosecution; and when the issue of limited time is found for the defendant, and his guilt before the time found against him, the verdict of the jury should show the finding on each issue, by such words as, “guilty, but at a time more than six months before the commencement of the prosecution.”
    Tried before Mi. Justice Waedlaw, at Lancaster, Fall Term, 1846.
    Indictment for gaming. Two witnesses, (who were of three mentioned in the indictment as the persons with whom the defendant had gamed,) testified that they bet at Faro, when the defendant was dealing; that the tools belonged to Woodson, and he having become tired, requested the defendant to deal for him, which defendant did once or twice; that defendant did not himself bet, for the betting was with the owner of the bank, but he drew in the checks when he won, as other dealers do.
    These witnesses could not at all remember the time- not even whether it was cue year, or two years, or five years ago— but they remembered that it was during Court at Lancaster, whether Spring or Fall term they could not say; but his recognizance being shown to one of them, he knew it was before the date of that. By that date, and the times when Court sat, it appeared that the time must have preceded the commencement of the prosecution.
    The witnesses said the playing was in an “owi-housc,” on the lot occupied by Wilson Villiens—and no question was asked which could have led to any explanation of the sense in which they used the term, out-house. The presiding Judge was of opinion that the technical signification might be given to a technical term, used without any explanation.
    His Honor held that betting was not necessary to constitute the offence; that time was not material, further than that it must appear that the offence preceded the prosecution, and that the lapse of six months would bar pecuniary penalties; and that the lapse of six months, being matter of defence, must be shown by the defendant, if the State had shewn that the offence charged was committed before the prosecution, and the defendant would avail himself of time to exempt him from penalties.
    The jury returned a verdict of guilty, and the defendant appealed and moved for a new trial.
    1. Because the place at which the transaction was proved to have occurred, was not sufficiently proved to have been a prohibited place.
    2. Because the. offence itself was not sufficiently proved.
    3. Because no time was proved—not even a year—nor that the offence preceded the warrant.
    4. Because the presiding Judge held that the defendant was subject to the pecuniary penalty, though no time was proved when the offence was committed: whereas, (it is submitted,) the State should have proved it to have been within six months before the prosecution was commenced, and the jury should have been instructed to have found in the affirmative or negative on this point, to the end that it might be known whether defendant was or was not subject to a pecuniary penalty.
    WitheRS, for the motion.
    Dawkins, contra.
    
   Wardi.aw J.

delivered the opinion of the Court.

Upon the three first grounds of appeal, this Court is satisfied with the ruling below, and with the verdict, and deems it unnecessary to add anything to what is said in the Report. Upon the 4th ground, this Court is of opinion that there was error in the direction that “the lapse of six months being matter of defence, must be shewn by the defendant, if &c.” If the pleading had been set down at length, the defendant on his part would have pleaded that the misdemeanor was not committed within six months before the commencement of the prosecutiom and put himself upon the country; the State would have taken issue; and the affirmative would clearly have been on the State. (See Hurst v. Parker, 1 Barn. & Ald., 92.)

If that issue had been found for the defendant, he would not, under our Acts, limiting the time of prosecutions as they have repeatedly been construed by our Courts, have been liable to any pecuniary penalty; although if found guilty on another issue, he would still have been subject to corporal punishment; (see State v. Dent, 469, Rich.) Under our practice of pleading ore tenus, in criminal cases, it has been directed in our cases, that where the issue of limited time is found for the defendant, and his guilt before the time found against him, the verdict should shew the finding by such words as “guilty, but at a time more than six months before the commencement of the prosecution.”

The defendant’s guilt has here been established by the verdict, but the question of time was not properly submitted to the jury, and there was no evidence to shew at what time before the commencement of the prosecution the offence was committed. The issue of time must then be taken to have been found for the defendant, and judgment be awarded accordingly.  