
    William Reeves v. The State.
    In order to convict under an indictment for playing at a game of cards, on which money was bet, at a house for retailing spirituous liquors, the betting must be proved as alleged.
    An indictment charging that on, &c., at, &c., in, &c., the defendant did play at a certain game with cards, on which money was then and there bet, is sufficient, without alleging that the defendant bet the money or knew that it was bet.
    Axipeal from Walker. This was an indictment for playing at a game with cards, on which money was then and there bet, in a house for retailing spirituous liquors. There was no proof that money was bet.
    
      J. P. Wile;/, for appellant.
    But admitting for the present that it sufficiently appears by the proof that the three first ingredients exist in this case, (proof of tlie playing, place, and time,) j'et as to the fourth ingredient, to wit, the betting of money on the game, there is no proof whatever. This, it is presumed, is a fatal infirmity in the proof, and will be decisive of this case so far as a reversal and new trial are concerned, but for the purpose, if possible, of having a final disposition of the case, it is respectfully submitted that the indictment is too defective ever to sustain a conviction, in this, to wit, that it does not charge that the defendant bet or knew that others bet upon the game played. The necessary scienter is wanting in the charge to make the defendant accountable to the criminal law. If others bet without liis knowledge, the proof of the fact would sustain the charge, and yet he would be guiltless, a proposition which can never be predicated of a good indictment. (See ílowlett v. State, 5 Yerg. R., 146,153; Smith v. State, 5 Humph. R., 163-4; 2 Yerg. R., 273.) It is submitted that a fair construction of article 564, Hartley’s‘Digest, in connection with the preceding section, will not authorize the conclusion that the Legislature meant'thereby to dispense with the usual requisites iu indictments further than to dispense with the necessity of describing in the indictment the particular kind of game played, which, in many eases, would be difficult. The general rule that it is sufficient to follow the language of the statute is admitted; but this rule is to have a reasonable construction, and not such a construction as would do away with the common-law requisites of an indictment, and in many cases lead to injustice and absurdity. (See 1-Iart. Dig., arts. 563-4.)
    
      Attorney General, for appellee.
    These eases (Royal v. The State and Reeves v. The State) are settled by the opinions of this court in the cases of Pryor v. The State, Cole v. The State, Sublett w. The State, The State v. Ake, except that in Reeves v. The State títere is an omission in the statement of facts to show that “money was bet” on the game proven. This was probably an oversight in making up the statement, hut we apprehend it is decisive against the State in this court, and must result iu the award of a new trial.
   Lipsoomb, J.

All tlie grounds taken by the plaintiff in error have been decided against him by previous decisions of this court with the exception of one. From the statement of facts it is not shown that money was bet upon the game that was proven to have been played. The indictment contained an averment that money was bet upon the game. This is a material averment and ought to have been proven. Without proof to support this allegation the verdict in this case is unsupported by evidence, and a new trial ought to have been granted. The j udgment is reversed and the cause remanded.

Reversed and remanded.  