
    Oscar F. Bell vs. The State.
    1 Cbiminal Law. Gaming. Gift enterprise. ■ Common gaming is an agreement between two or more persons to risk money or other thing of value, on a contest or chance of any kind, where one must he loser and the other winner. Thus, the fashionable sporting artifice, commonly called a “gift enterprise,” by which a merchant or tradesman sells his wares for their market vafee; but, by way of inducement, gives to each purchaser a ticket, which entitles him to a chance to win certain prizes, to be determined after the manner of a lottery, i is common gaming under our laws, and all persons aiding or abetting such transaction, are indictable.
    2. Same. Trial by jury. New trial. If the record shows that less than twelve jurors tried a case, a new trial will be granted.
    EROM KNOX.
    This was an indictment in the Circuit Court of Knox county, for unlawful gaming. At the June Term, 1857, before Judge Swan, the defendant was convicted and fined. He appealed in error.
    
      Sam’l R. Rogers, for the plaintiff in error.
    J. B. Heiskell and W. B. Reese, Jr., for the State.
   CaeutheRS, J.,

delivered the opinion of the Court.

This is a conviction for gaming.' The question is, whether the case made out, constitutes that offense. The-scheme is denominated a “ gift enterprise,” in the presentment, or a game at which was hazarded, and lost, and won, a gold watch, hooks and money. It is a rare and novel device for winning and losing, and is ingeniously contrived to evade the laws against gaming and lotteries. The plan is thus described by the witnesses : “ Hanegan & Nelson, booksellers, had an old lot of books on hand, which they were anxious to dispose of. They proposed to sell them at a “gift sale,” selling each book at its market price, but offering to the purchaser of each book a prize, to be drawn on the purchase of each volume. These prizes were of various value, and consisted of two gold watches, of the value of $40 each, one silver watch of the value of $15 or $20; sets of mathematical instruments, valued at from ten down to four or five dollars; and various others, down to small boxes of wafers, and things of that sort, worth ten cents. The number of these prizes was some hundreds, as were the volumes of books. The names of these prizes were written in a column in a blank book, and a sort of sliding scale fitted over the names, and so arranged, that at the purchase of a book, the scale was slid down one line, and revealed the name of the prize the purchaser of the book received.” Holland, with whom the defendant was equal partner, bought some eight or ten books, and received as many prizes, and among them was a gold watch, valued at $40. The books were sold at the usual market prices, as the witness believed.

His Honor, the Circuit Judge, charged that these facts made out a case of unlawful gaming, and the defendant was convicted.

Gaming is an agreement between two or more, to risk money on a contest or chance of any kind, where one must be loser and the other gainer. Some games depend altogether upon skill, others upon chance, and others are of a mixed nature. Billiards is an example of the first, lotteries of the second, and backgammon of the last. 2 Bouv. Law Die., 553. .A lottery is a game of hazard, in which small sums ■ are ventured for the-chance of obtaining greater. Now in view of these definitions, what is the case before us. ■ Is it not that species of gaming called a lottery? A small sum is ventured for the chance of a greater, one dollar or five dollars perhaps, for a book, and the chance of a watch, valued at forty, or a set of instruments at two dollars, or a box of wafers worth ten cents. If the book is certain, without hazard, the watch is not, that, depends upon chance. So all pay their money, at least in part, for the chance of winning a prize of greater or less value. According to every correct idea of legal definition, this must be gaming, and all concerned are guilty of that offense. All these artifices to evade and cheat the law, and entrap the unwary, are but aggravations of the offense.

But there was but eleven jurors only, as it appears in the record, in this case, for which the judgment must be reversed.  