
    Peter G. Johnston vs. The State of Mississippi.
    A grand jury composed of all the regular venire in attendance on the court, being twelve in number, and two persons summoned by the sheriff, under the direction of the court, from the bystanders, is a good and legal grand jury.
    The case of Thomas Dowling v. The State, (5 S. & M. 664,) cited and affirmed.
    In an indictment under the act of 1839, chap. 26, entitled “ An act further to suppress and discourage gaming,” it is not necessary to state the individual game of cards played ; the charge that the defendant “ did play at a game at cards for money,” is sufficiently definite for any reasonable or legal purpose.
    Error from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    This was an indictment found by the grand jury of Hinds county, against Peter G. Johnston. The charge contained in the indictment was in these words, to wit: “ That Peter G. Johnston, late of the county of Hinds aforesaid, laborer, on the thirtieth day of May, in the year of our Lord one thousand eight hundred and forty-three, in the county aforesaid, did play at a game at cards for money, contrary to the form of the statute.” The jury found the defendant guilty, and he was fined by the court twenty dollars. The bill of exceptions filed by the defendant discloses the follo'wing state of facts, to wit: when the regular venire was called, but twelve persons summoned as venire-men answered; whereupon the sheriff, under the direction of the court, summoned two persons from the bystanders, who, together with the twelve venire-men, were drawn and sworn as a grand jury, &c. On the' trial, the district attorney proved, that at sundry times in the fall of 1842 and spring of 1843, the defendant had played at games of cards in Cayuga, Hinds county; that he played, as the witnesses considered it, for pastime or amusement; the game played was usually Seven up, and the bet from a dime per game to several dollars, which was generally laid out in a treat. Which, being all the evidence, the defendant moved the court to instruct the jury, “ that they ought to find for the defendant.” The court overruled the motion, and the defendant excepted. The jury found a verdict of guilty, and the defendant entered a motion in arrest of judgment; the motion was overruled by the court, and the defendant now prosecutes this writ of error.
    
      Daniel Mayes, for plaintiff in error,
    contented,
    1. The indictment should have been quashed, because there was no grand jury legally empanelled and constituted, and cited Laws of Mississippi, from 1824 to 1838, p. 578; Noy’s Maxims, 9th ed. p. 4; Slaniland v. Hopkins, 9 M. & W. 192 ; Dwarris on Statutes, 48; Rex v. Daniel, 7 B. & C. 669 ; Rex v. Ramsgate, 6 B. & C. 712 ; Rex v. Inhabitants of Great Bentley, 10 B. & C. 527; Best, J. in 3 Bingham, 196.
    2. The indictment is bad on its face, because it does not charge the general name of the game at which the defendant may have played. If the statute dispenses with all identification of the offence, it is unconstitutional. 10th sect, of 1st art. of the Constitution of the state of Mississippi; 3 Story’s Com. on the Constitution, 661; 2 Kent’s Com. 3d ed. 12 ; Sect. 12 of art. 1 of Constitution of Miss.; 2 Russell on Crimes, 659; 3 Story on the Constitution, 658, 662.
    
      Franklin Smith, for the state.
    Indictment making the charge in the language of the statute creating an offence, in general language, is good. 6 Cowen, 296, 293 ; 12 Wendell, 431; King v. Holden, Crown Cases Reserved, 116. In the latter case the indictment charged, in the general language of the statute, that the defendant did “ feloni-ously dispose and put away a forged bank note,” without stating in what manner, to whom, or what bank the note was of. The twelve judges unanimously held the indictment good, because the statute created a new offence, and the offence was a substantive one. No matter to whom the bank note was passed. So in these cases, no matter whether defendants played at pool, whist, uker, poker, or any other species of games at cards, it was equally an offence created by statute; they were advertised by the indictment of the offence, and they were called upon to defend themselves against having played at any game at cards whatever for money. Noonan v. The State, 1 S. &M. 562, 563. This court has decided all the questions raised against the principle of these indictments in favor of the state. 1 Chit. 281, 282, 286, 288. See 3 Gill & Johns. R. 310, 311.
    I submit that at common law the forms require the species of game to be mentioned ; it was to obviate this that the statute, sect. 85 How. & Hutch. 684, was passed. That section declares that it shall be sufficient to charge the general name of the game. Now there are three general names of games mentioned in sect. 79, H. & H. 683; cards is one general name, dice another, and billiards another. Now to say that whist, yuker, brag, &c. shall be named, would be to say that the species of game shall be named and not the general name. So of billiards, the rub, pool, the long hundred, or the thousand other varieties known to gentlemen of pleasure, but not to the grand jury; the statute declares these species of the generic terms games at cards, dice, billiards, need not be known to the grand jury, but' that they may find a bill against the offender for playing at cards, dice, &c. by the general name of the game at which he played.
    This court, in the case of Noonan v. The State, 1 S. & M, 562, ruled that is was not necessary to charge in an indictment for violating the license law of 1842, the kind of spirits sold, nor the name of the master of the slave to whom the liquor was sold; and the court sustained the law of 1842 as constitutional. That was a much stronger case for defendant than this, and a much broader law in the humble judgment of the undersigned. Before the court can declare these indictments insufficient, they must reverse the decision in Noonan v. The State, and also declare the 85th sect, of the gaming act, H. & H. 684, unconstitutional. That section declares the gaming acts remedial acts and not penal; they should therefore be construed liberally. 6 Cowen, 293; 15 Wend. 280.
    The court is forbidden to quash the indictment — sect.^85, H. & H. 6S4, binding on the court. 1 Chit. 303.
    As for defendants being liable to be indicted twice, to be found guilty on a charge different from the one made by the grand jury, these are contingencies and possibilities that the court is bound to presume were as fully in the contemplation of the legislature as they can be before the mind of the court. The law-making power has nevertheless passed the act, and for the court to disobey would be to exercise a legislative authority by repealing instead of expounding the law. Unless the act is clearly unconstitutional, the court will never disobey it.
    To all the fanciful possibilities of being tried twice, convicted on a charge different from the one preferred, it is sufficient to answer, that defendants have been fairly tried; that they are not by these indictments in danger of suffering twice for the same offence; that when they are indicted again, there would be a time for their complaints; and doubtless, could such a thing be possible, if there were the least doubt on the mind of the court, under plea of former acquittal the circuit court would direct an acquittal, and if it did not, this court would. But all these remote dangers must have been in the contemplation of the legislature; and yet, in the language of 6 Cowen, 293, “ to suppress a great mischief,” they have declared a penal statute shall be remedial in its construction, and that other mischiefs to citizens shall be hazarded (if^such things could possibly be in our country,) for the purpose of securing the good of society, and of totally putting down a fascinating vice.
    I should deem it derogatory to this court, were I to press any consideration further of the cases than only to say, in conclusion, that I deem the sole point that can be argued at all, is, — is the law, H. & H. 684, sect. 85, constitutional ? And that it is, this court has clearly decided in 1 S. & M. 562, to which the court is again referred.
    I would also refer the court to the sections of the license law, pronounced constitutional by this court, in the case of Noonan, above referred to, which will be found much wider of the common law particularity, than the gaming statute law of 1842, sects. 5 and 8, pp. Ill, 112, chap. 10.
   Mr. Justice Thacher

delivered the opinion of the court.

The plaintiff in error was indicted in the Hinds county circuit court, under the act of 1839, ch. 26, entitled “ an act further to suppress and discourage gaming.” A verdict of guilty was rendered upon the indictment.

The first point made in the case was considered and decided by this court in the case of Thomas Dowling v. The State, 5 S. & M. 664. This point had reference to the mode in which the grand jury were empanelled, and was determined unfavorably to the position assumed by the plaintiff in error in this case.

Another point in this case is made as to the sufficiency of the indictment. The indictment charges, that the defendant “ did play at a game at cards for money.” It is objected, that this description of the offence is not sufficiently certain, and that it should have set forth the name of the game at cards played by the defendant. The statute H. & H. 683, sect. 79, enacts that “ if any person or persons shall encourage or promote any game or games, or shall play at any game or games at cards, &c. for money, &c.;” and the same statute, H. & H. 684, sect. 85, provides, that in all cases arising under this or any other act to suppress gaming, it shall be sufficient to charge the general name of the game at which the defendant^ay have played, without setting forth or describing with or against whom he may have played or bet. In Tennessee, the statute against gaming, Act 1799, chap. 8, sect. 2, is nearly word for word similar to that of Mississippi. In the case of Dean v. The State of Tennessee, Martin & Yerg. R. 1, 127, the indictment charged that Dean “ did unlawfully encourage and promote a certain unlawful game and match at cards for money, and unlawfully did play for and bet money at the said game and match at cards,” &c. An objection was raised to the insufficiency and uncertainty of the charge in the indictment, in not specifying the particular game played at for money, and the amount of money bet. The court held the allegation in the indictment to be sufficient. In the case of Montee v. The Commonwealth, 3 J. J. Marshall’s R. 135, it was decided that the word “cards” identifies the specific game played, and that the individual game of cards played need not be stated.

We are disposed to think that the allegation in the indictment that the defendant “ did play at cards for money,” is sufficiently defined for any reasonable or legal purpose; for “it may be,” as was said by Judge Peck, in the case quoted above from Martin & Yerger’s Reports, “ that adepts at gaming play for money without any game, where their invention for names has been exhausted.”

Judgment affirmed.  