
    *The Commonwealth v. Mark Butts.
    Gaming — Variance between Allegation and Proof— Case at Bar. — On a Presentment for gaming, the defendant was charged with the offence committed at the booth of Price SMmner: the proof was of gaming at the booth of Olarke, the said Skinner having no right, interest, or agency in the booth: this proof is insufficient to support the charge.
    The defendant was presented at Fairfax Superior Court, in the following terms: “We present Mark Butts for playing at the game of Paro, at the booth of Price Skinner, within the county of Fairfax, within twelve months last past, on the information of John Fulmore, and Price Skinner,-sworn, and sent as witnesses to the Grand Jury by the Court.” The defendant pleaded the general issue, and the jury found this verdict: “We of the jury find the defendant guilty of unlawful gaming.” The defendant moved for a new trial on this ground. At the trial the defendant having introduced testimony to prove that the booth in which, by the Presentment, the gaming is alleged to have been committed, was the booth of one-Clarke, and not that of Price Skinner, and that the said Price Skinner had no right, interest or agency therein: the Attorney for the Commonwealth, thereupon moved the Court to instruct the jury, that it was immaterial whether the booth was that of Clarke, or Skinner, if the offence should be proved to have been committed in either: and the Attorney for the defendant insisted, that when the place is laid in the Presentment, or Information, merely as a venue, it is immaterial and need not be proved : but where,- as in this case, it is laid as part of the description of the fact charged against the defendant, then it must be proved precisely as laid. But the Court gave the instruction as prayed by the Attorney for Commonwealth, and the jury then found the above verdict. Whereupon the defendant moved for a new trial on the ground of a misdirection by the Judge in the above instruction : and the Judge adjourned the question to this Court.
    
      
      See monographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917; monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
      The principal case was cited with approval in Windsor’s Case, 4 Leigh 681, and distinguished in Pomeroy’s Case, 2Va. Cas. 345.
    
   PER CURIAM.

“This Court, by the unanimous opinion of the Judges present, doth decide that the said Superior Court ought not to have given the instruction to the jury set forth in the record, and that a new trial ought to be granted to the defendant.”  