
    *Kincanon v. Commonwealth.
    December, 1835.
    Bill of Exceptions — Admission of Evidence — Case at Bar. — Upon objection made to the admissibility of testimony, the judge holds it admissible, for two distinct reasons, which he states; and exception is taken to the admission of the testimony, wherein the opinion of the judge, and his reasons for it, are both stated: the court, not considering the second reason assigned by the judge as having been an instruction to the jury, or as excepted to, and holding that the evidence was, for the first reason assigned by the judge, properly admitted, affirmed the judgment.
    Error to a judgment of the circuit superior court of Smyth. At September term 1834, the grand jury made a presentment against Kincanon “for unlawful gaming by playing at cards at the tavern of Samuel Hooser, within six months last past, in the county of Smyth and within the jurisdiction of the court, upon the information of Alfred Atkins.” The defendant pleaded not guilty. At the trial, the defendant filed exceptions to an opinion of the court; by which it appeared—
    That Atkins, the informer, called as a witness for the commonwealth, testified, that the witness and Johnston played a game at cards (all fours or seven up) at Hooser’s tavern at Smyth courthouse, in June or July 1834, — the witness thought on the 11th July, for reasons which he stated ; that at the same time the witness played with Johnston, the defendant played cards with others, at another table, at the same place; that there was a quarrel between the persons playing at the other table, which broke up the game; that the witness himself had played with Johnston at the same place, at another time, but whether that was within twelve months before this presentment found against the defendant, he did not remember. Johnston was then called as a witness for the commonwealth, and testified, that at the time he and Atkins played at Hooser’s tavern, he saw the defendant playing at cards with others, in the same room, at another table, where there was a quarrel, as testified by *Atkins ; but he thought the game at which he played with Atkins was not all fours but four pence loo, and that the time was early in may 1834, because the witness went to Kentucky the morning after the playing took place, and did not return till June following, and he did not remember ever playing with Atkins, at Hooser’s tavern, but once. Upon this, the attorney for the commonwealth, asked Johnston, whether he had not seen the defendant play cards at Hooser’s tavern after his return from Kentucky ? The defendant’s counsel objected to the question as improper, but the court overruled the objection, and the witness answered the question in the affirmative. The defendant’s counsel insisted, that the answer to the last question was not proper evidence, because it went to prove a different playing from that to which both the witnesses testified,' — that, namely, when the quarrel took place; and the commonwealth’s attorney having selected that particular playing as the offence, could not introduce evidence of any other, though within the time alleged in the presentment. The attorney answered, that he went for only one conviction on the presentment; but he insisted, that this was a question as to the credit of the witnesses ; that the jury might believe, that the second playing mentioned by Johnston was the same testified by Atkins when the quarrel took place ; that there was but one quarrel, but that might have been at the second playing mentioned by Johnston, and not at the first, as he supposed; or that Atkins might have been mistaken as to the time when the fact occurred, and that his testimony related to the second playing. And of this opinion was the court: and the judge added, that he was not aware of any rule of law or evidence, which, if the attorney for the commonwealth failed in his first attempt to establish the offence charged within the term of limitation, precluded him from offering other evidence to prove the offence, though by proof of even a different playing from *that first spoken of by the witness or witnesses ; and, therefore, the court overruled the defendant’s objection, and admitted the evidence: to which opinion of the court the defendant’s counsel excepted.
    Verdict, guilty; and judgment for the fine of 20 dollars, and costs ; to which this court, upon the defendant’s petition, allowed a writ of error.
    
      
      See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   MAY, J.,

delivered the resolution of the court — That the court, not considering the second reason assigned by the judge, in the bill of exceptions, for admitting the evidence objected to, as being an instruction to the jury, or indeed as having been stated to them at all, or as being excepted to by the defendant, — was of opinion, that the testimony was, for the other reason stated, properly admitted; and therefore, that the judgment be affirmed. Parker, Scott and Brown, J., dissented.  