
    *Windsor v. The Commonwealth.
    December, 1833.
    ■Gaming — Case at Bar. — Indictment for gaming, charges defendant with unlawful playing with cards, to wit, at the game of all fours, of loo. and of whist, at a public place, to wit, at the store house of G. H. & Co.: Heud,
    1. Same — Same—What Necessary for Conviction.— That to convict the defendant, it is incumbent on the prosecutor to prove, that he played at some one of the games specified in the indictment: and
    2. Same — Store House — When a Public Place. — That, if the playing was at the store house of G. H. & Co. in the night time, after the business of the day was at an end, and the doors closed, the store house in that state of things, prima facie, • was not a public place, though it was so when it was open to the public in the day time.
    Error to a judgment of the circuit supe-riour court of Eayette. Windsor was indicted in that court, upon the Sth section of the statute against unlawful gaming, 1 Rev. Code, ch. 147, p. S63. The indictment charged, “that he did unlawfully play at certain games at cards, to wit, the game of all fours, the game of loo, and the game of whist, at a public place, to wit, at the store house of G. Huddleston & Co.” The defendant pleaded not guilty. At the trial, his counsel moved the court to instruct the jury, 1. that it was necessary to convict the defendant, that the jury should be satisfied that he played at some one of the games specified in the indictment; and 2. that if the jury should find from the evidence that the playing was at the store house of Huddleston & Co. in the night time, after the business of the day at the store was ended and the doors of the house closed, it ought not to be considered by the jury that the playing was at a public place within the meaning of the statute, no one having a right to enter the house at that time, without the consent of the owner. But the court refused to give such instructions, and the defendant filed exceptions.
    Verdict, guilty; and judgment'for the fine of twenty dollars imposed by the statute, and the costs of the prosecution.
    And now, the defendant presented a petition to this court for a writ of error to the judgment, assigning as errors, the refusal of the court to give the instructions set forth in the bill of exceptions. The writ of error was allowed.
    *Leigh, for plaintiff in error.
    The attorney general, for the commonwealth.
    
      
      See monographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917. The principal case was cited in State v. Brast, 31 W. Va. 382, 7 S. E. Rep. 12.
    
   SEMPLE, J.

As to the first point: if it be admitted, that the commonwealth might have convicted the accused, on proof of his playing at any one unlawful game, had the indictment charged him with playing at a game at a public place, and that the game was neither bowles, backgammon, chess nor drafts (which are excepted by the statute), it does not follow, that he can be convicted upon this indictment, charging that he played at the game of all fours &c. upon proof of his playing at any unlawful game other than one of the games specified. The Attorney chose to frame his indictment differently. That alleges, that the defendant played unlawfully at the game of all fours &c. with cards. The offence here consists in the playing at the game of all fours &c. which are unlawful games, not being either of the games excepted in the statute. The games charged to have been played, became essential ingredients in the offence itself, and could not be rejected as unnecessary or as surplusage. The proof must agree with the allegation, and this would have been required even in a civil case. It was more necessary to prove that the defendant had played at one of the specified games, than it was in Butt’s case, 2 Virg. Ca. 18, to prove, that the play took place at the booth of Skinner, as charged in the presentment, and not at the booth of Clark; for, whether the play was at one or other of the booths, it was equally an offence against the statute; but as it was laid to have taken place at the booth of Skinner, proof that it took place at the booth of Clark, was held not to be competent. A majority of the court, therefore, is of opinion, that the court below erred in refusing the first instruction asked for.

Then, as to the second point — To convict the defendant, it was incumbent on the commonwealth to prove, that the play occurred at the store of Huddleston & Co. and that it was a public place at the time of the playing: it was so alleged *in the indictment. Proof that Hud-dleston & Co.’s house was a store house, at which goods were vended, would establish that it was a public p!ace so long as it was kept open for that purpose. But when the business of the day was ended, the store house was bona fide shut up, the doors closed, it ceased prima facie to be a public place; and in the absence of other proof, it would not be regarded as a public but a private place. When reopened, it again became a public place, in point of fact and legal contemplation. Even when the doors were closed and all sales ceased, the business of the day having- ended, it might be shewn by testimony to have been in fact a public place, so as to subject persons engaged at play in the house to the penalties of the statute. The second instruction asked for is not at all inconsistent with this latter proposition. The court understands that instruction as going no farther than to insist, that it was not an offence against the statute, to play at the store house, in the night, after the business of the store was ended, and the doors shut, in the absence of other proof as to the character of the house; that the house did not continue, in that state of things, to be a public place, because it was a store house open to the public in the day time. And this by no means excludes the idea, that it was competent to establish by other proof, that, though shut up at night, as to the ordinary business, it was still, in truth, a public place. The court, therefore, is of opinion, that the circuit superiour court erred in refusing to give the second instruction asked for.

Judgment reversed, arid case sent back to the circuit court for a new trial &c.  