
    Daniel O. Williams vs. The State of Mississippi.
    Where a party is indicted under the act for betting on an election, he will not be relieved from the penalty of the act, on proof that he did not himself make the bet, but procured it to he done for him by another; in such case the party who procured the bet to be made, would be as guilty as the person who effected the bet for him ; the rule being, that in all offences less than felonies, those who in felonies would be accessaries before the fact, become principals, and must be proceeded against as such.
    In the trial of a prisoner for betting on the result of a presidential election, it is competent for the state to prove by parol the result of such election ; it being a matter of such great public interest as to be universally known, and can therefore be proved with absolute certainty by parol evidence.
    An indictment charging the betting of money, will not be sustained by proof of the betting of United States treasury warrants ; in legal acceptation, such warrants are not money; and even if the indictment had charged the bet to have been made with them as valuable things, their value must have . been proved, to warrant a conviction.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    At the June term, 1845, the grand jury indicted Sidney S. Erwin and Daniel O. Williams, for betting two hundred dollars upon the result of the presidential election, which took place on the first W ednesday of December, 1844. The case was discontinued as to Erwin, and in November, 1846, a trial was had on the plea of not guilty by Williams. Samuel H. Charles proved, that some weeks previous to the presidential election of 1844, he had been requested by Williams to effect a bet for him with Erwin on the result of that election, saying to him, at the time, that he presumed that Erwin, in the event of Mr. Clay’s being elected president, would be pleased to attend his inauguration; and he (Williams) if Mr. Polk should be elected, would be gratified at’being present at Mr. Polk’s inauguration; and proposed that if Mr. Clay were elected, he (Williams) should pay Erwin’s expenses to Washington; and if Mr. Polk were elected, Erwin should pay Williams’s expenses there.
    The witness received from Williams, for the purpose of the bet, four United States treasury notes, each of the denomination of fifty dollars, which, after arranging the terms of the bet with Erwin, were put up with the two hundred dollars of Erwin in the hands of a third person; that the presidential election occurred as stated in the indictment, and resulted as there stated; after the result had been ascertained, Williams received back his stake with the two hundred dollars of Erwin’s.
    Williams excepted to the proof by parol of the result of the election. This was all the testimony.
    The court, on the part of the state, instructed the jury,
    1. That if they believed, from the evidence, that Williams, in making his bet, offered four fifty dollar treasury notes, as two hundred dollars, and Erwin, with whom he was making the bet, made no objection to treasury notes as money, but received them as money, that would be sufficient to satisfy the charge of betting two hundred dollars.
    2.If the parties intended to bet money, and the four treasury warrants, deposited by Williams, were intended to represent that amount of money, and were accepted by him as money, and Erwin bet money agáinst them, the allegation is sustained, even if the treasury warrants had no intrinsic value.
    The defendant asked these instructions.
    1. If the jury do not find it proved to their satisfaction, that money was bet as charged, they must find for defendant.
    2. Even though treasury warrants were proved to be valuable, if no money was bet, a conviction could not be had.
    3. If it is not proved that treasury warrants are valuable, or money, the jury cannot go out of the proof to presume it.
    4. If the jury believe, from the evidence, that the defendant did not make this bet himself, but procured another to make it for him, they must acquit under the indictment.
    5. The charge in the indictment being, that money was bet, if the jury believe that the proof only shows that United States treasury warrants were bet, they cannot find against defendant.
    The court gave the first three, but refused the last two, instructions. The defendant excepted. The jury found a verdict of guilty : the court fined the defendant forty dollars and costs, and he sued out this writ of error.
    
      D. O. Williams, in proper person.
    1. Proof that United States treasury notes were bet, does not sustain the charge, in the indictment, that two hundred dollars ' were bet. McAuley v. The State, 7 Yerg. R. 523; Johnson v. The State, Mart. & Yerg. R. 129; Garner v. The State, 5 Yerg. 160.
    This court has itself recognized and expressly held in the following cases, that bank notes are not dollars or currency. Dowell v. Boyd, 3 S. & M. 592; Mitchell v. Hewitt, 5 lb. 361; 
      Anketett v. Torrey et al. 7 lb. 467; Prewett v. Standifer, 8 lb. 493 ; Bailey et al. v. Dilwortk, 10 lb. 404.
    2. The court erred in permitting oral testimony to be given of a presidential election having occurred in manner and form as averred in the indictment, a matter which the witness could know nothing of, but from uncertain rumor; by such testimony it would have been an easy matter to have proved that either Weller or Ford was elected governor for the state of Ohio, in 1848, in accordance with the constitution and laws of the state of Ohio.
    3. The indictment should have charged the betting of two hundred dollars in United States treasury notes, purporting to be money, or purporting to be orders on the United States treasury for the payment of money, if the betting of treasury notes be indictable under the statute. 1 How. (Miss.) R. 262.
    A conviction under this indictment would not have exempted the defendant from another prosecution of betting United States treasury notes.
    Tarpley, on same side.
    The bet was made by S. H. Charles for Williams, Williams not being present. Hence, Charles alone is the guilty man, as Williams could not have committed the offence charged, by proxy.
    
      John D. Freeman, attorney general, for the state.
   Mr. Justice Teacher

delivered the opinion of the court.

This is an indictment framed under the act of February 9, 1839, entitled, An act farther to discourage and suppress gaming.” Hutch. Code, 951, art. 11.

The indictment charges, that Daniel O. Williams did wager and bet with, and against one Sidney S. Erwin the sum of two hundred dollars, upon the result of an election of a president of the United States of America, had and held on the first Wednesday in the month of December, A. D. 1844.

The evidence of Samuel H. Charles established, that some weeks previous to said election, he was requested by Williams to effect a bet for him with said Erwin on the result of said election ; that he afterwards received from said Williams four United States treasury notes, each of the denomination of fifty dollars, which, after arranging the terms of the bet with said Erwin, together with two hundred dollars supplied by said Erwin, were placed in the hands of a third person; that the said presidential election did occur, as charged in the indictment, the result made known, and that Williams did receive back his said treasury notes, together with the said two hundred dollars supplied by said Erwin.

The act under which this indictment was framed runs against any person who “■ shall wager or bet, or promote, or encourage the wagering, or betting of any money, or other valuable thing upon any cock-fight, or duel, or upon the result of any election of any kind whatever.”

The conviction in this case is claimed to be illegal and erroneous', for various reasons.

In the first place, it is contended, that the evidence establishes that Williams did not himself make the bet, but procured it to be done for him by another, which should relieve him from this indictment. It is not necessary that a person, to be guilty as principal, should perpetrate an offence with his own hands, for if it be committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal, and if the agent be aware of the consequences of the act and answerable for it, he becomes a principal in the first degree, and the employer an accessary before the fact. Such is the law in the commission of felonies; but, as in all offences below the degree of felony, there can be no accessaries either before or after the fact; those, therefore, who in felonies would be accessaries before the fact, are, in respect to offences below that degree, principals, and must be proceeded against as such. This rule holds in regard to the highest and lowest of such of-fences. 4 Black. Com. 36; 1 Hale, 616.

It is also insisted, that it is not competent to establish the result of the said presidential election by parol evidence. This point is not, we think, well taken, for -various reasons, .and among others, because such a matter of great public interest is universally known throughout the land, and can, therefore, be proved or disproved with absolute certainty by parol proof.

It is likewise relied upon, however, that while the indictment charges a bet of money to the amount of two hundred dollars, the evidence shows the bet upon the part of Williams to have been four United States treasury notes, each of the denomination of fifty dollars, and it is'insisted that in this particular the ■probatum does not correspond with the allegatum. This point we deem to be well taken. In legal acceptation, such notes are not money, and even if the indictment had charged the bet to have been made with them, as valuable things, their value must have been proved, to have warranted a conviction. 1 Nott & McCord, 9; 12 Wend. 547; 2 Leach, 1036, 1090; 2 Car. Law Rep. 269.

As upon this latter principle the instructions of the circuit court to the jury held a different doctrine, we accordingly reverse the judgment, and direct a new trial to be had in the case.

Judgment reversed, and a new trial awarded.  