
    Bagley vs. The State.
    It is indictable by the statutes of the State to bet upon a match at cock-fighting.
    The statutes made to suppress gaming are, by the provisions of the act of 1824, ch. 5, sec. 5, to be construed remedially, and therefore certainty to a common intentis all that is requiredin charging the offence of gaming.
    The indictment charges that the defendant “did unlawfully game, bet and hazard upon a match at cock-fighting a valuable thing, to wit,” &c. Held, by the court, that this allegation charged the game with sufficient certainty, and also charged with sufficient certainty that the game was played.
    At the July term of the circuit court of Hardeman county, 1839, the grand jury returned a bill of indictment into court against James Bagley, charging that said Bagley “did unlawfully game, bet and hazard upon a match at cock-fighting valuable things, to wit, many bank notes, goods, wares and merchandise, of the value of five dollars, with divers citizens of the said State.”
    The defendant moved to quash the indictment because it did not appear that there was a prosecutor. This motion was overruled.
    The defendant then pleaded not guilty; and at the November term the case was submitted toa jury upon the proofs, who found the defendant guilty as charged in the indictment, and he was fined by the court fifty dollars. A motion was made in arrest of judgment, which was overruled by Barry, the presiding judge, and an appeal in the nature of a writ of error was taken to the supreme court.
    
      Baity, for plaintiff in error.
    There is error in the judgr ment of the court below for two reasons: 1. Because the court should have sustained the motiqn to quash the indictment for want of a prosecutor. 2. Because the indictment is defective upon its face, and the judgment below should therefore have been arrested.
    On the first point: if the offence charged in this bill of indictment is gaming within the meaning of our statutes then no prosecutor was necessary; but if it be not gaming then one was necessary, and the court should have quashed it, Ga-. ming was not an indictable offence at the common law. It has been made such by our statutes, and to them alone can we safely look for an accurate description of the offence. 3 Bacon’s Abridgment, title Gaming, A. It is true the English statutes have applied a penalty to gaming, but the want or addition of one or more words varying those statutes from ours might so materially enlarge, lessen, or vary the definition of the offence as to render their adjudications thereon inapplicable here and unsafe as precedents. The act of 1799, ch. 8, is the first that makes gaming an offence, and the second section of that act seems to be the foundation on which this indictment must stand or fall. All the subsequent acts on the subject of gaming refer to this act as creating and defining the offence, and all the sections of this act but the second seem to have no application to this indictment. The second section speaks only of matches at cards, dice, billiards, or any other game of hazard or address. The words “games of hazard or address,” then, must include the present case, or it is not within the meaning of the act. Now, a game of hazard is that in which chance is the essential ingredient, and a game of address is that in which skill, a quality of the human intellect, is the predominant quality or characteristic, (see any respectable lexicon;) but the result of a cock-fight'" depends much more upon the relative size, age, weight, strength, condition and other qualities of the cocks than upon chance or skill; in other words, chance or skill, hazard or address, are not the prominent characteristics of a cock-fight; and therefore it is not within the letter, spirit or meaning of the acts on the subject of gaming. The indictment should have been quashed and the defendant below dismissed. Act of 1801, ch. 30, N. and C. 385.
    Secondly: this indictment is defective on its face. Mr. Starkie says that “the rule has long been established that no person can be indicted but for some specific act or omission, or punished unless such act or omission be charged in apt and technical terms with precision and certainty on the face of the record.” Starkie’s Cr. PL 73. And that if the act or omission be not in itself illegal it must be shown to be so from the particular circumstances of the case, which cannot he supplied hv any intendment whatsoever. Stark. Or, PL 
      Vlé. To constitute the charge of* garriing within the mean- - ing of our acts three requisites must be set out and shown in the indictment, to wit: first, that the defendant did encourage or promote, or did himself play; second, at some one of the games prohibited; third, for money or other valuable thing. Act of 1799, sec. 2, N. and C. 355-fi. This indictment does not show the first or second of these requisites either separately or together without an intendment. It should have shown that the defendant encouraged or promoted a match or made it up himself, and that it waá actually fought so as to determine the bet by the event of such fight. Meigs’ Rep. 101. Not showing these facts sufficiently without an intendment the indictment is defective and the judgment should have been arrested.
    
      T.J. Turley, appeared for the State,
    the Attorney General being absent.
    The indictment is almost in the words of the one in the case of Bennet vs. The State; the words there being “did gamble, hazard and bet,” here “did game, bet and hazard;” it was held, that the word “gamble” was the most apt and substantial word to convey the idea of gaming. 2 Yerger’s Reports, 472: see also Martin and Yerger, 127. That he who bets upon a game of hazard or address is within the act has never been the subject of a doubt with the bar or benchi 2 Yerg. 472: State vs. Smith, 2 Yerg. 273. This form is held good even in a case of betting on elections. 5 Yerger, Í84, State vs. Trotter. Three allegations only are necessary: first, playing or betting; second, for what they played or bet; third, the game. No prosecutor is required on an indictment for gaming. Act of 1817, ch. 61, N. and C. 385. Cock-fighting is gaming within the act. Our act is almost a literal copy,_of 9 Ann, ánd foot-racing and horse-racing have been decided to be within that act, and that the statute ought to be extended to all sports. 1 Russ, on Crimes, 408: 2 Hawk. Pleas of Crown, 486, ch. 92, sec. 49, 52; 2 Wils. 36. So is cricket. I Wils. 220: 2 Hawk. PL Crown, 486. So is wagering that A would find a man in such a time who would carry on foot twenty-four stone. Cowp. 282. No action can be maintained on a wager on a cock-fight. 1 Russ. 408, note K: 3 Camp. 140. So keeping a cock-pit is within the-statute of 2 and 3 Ph. and M. 5 Com. Dig. 834. Keeping a cock-pit is not only indictable at common law, but is considered a gaming house within the statute 33 Hen. VIII, ch. 9. 2 Hawk. PI. Crown, 478: 3 Keb. 510. Gaming is defined in The State vs. Smith, 2 Yerger, 281. The case of The State vs. Smith, Meigs, 101, settles this question.
   Tuxu-ey, 3.

delivered the opinion of the court.

This is an indictment for gaming, upon which the plaintiff in error was convicted and judgment pronounced in the circuit court, and it is now brought here upon a motion in arrest of judgment, to sustain which several reasons are ingenious* ly pressed.

1. It is said that there is no game charged in the indictment which is, by any of our statutes against gaming, made indictable. The bill charges the offence to have been committed by betting upon a match at cock-fighting, and it is denied that cock-fighting is within any of our statutes against gaming. The act of 1799, ch. 8, makes void all contracts the consideration of which is money lost by playing at cards, dice, billiards, horse-racing, or any other species of gaming whatever, or by betting upon the parties who shall play at such cards or run such races; and also inflicts a penalty of five dollars upon any person or persons who shall encourage or promote any match or matches at cards, dice, billiards, or any other game of hazard or address for money or other valuable thing. The act of 1803, ch. 12, makes it indictable for any person to play within the meaning of the act of 1799, ch. 8. The question then is, Is cock-fighting embraced by the words “any other species whatever,” which are used in the first section of the act of 1799, and the words “any other game of hazard and address” which are used in the second? and we think it is both upon principle and authority. It is said by judge Catron, in delivering the opinion of the court in the case of The State vs. Smith and Lane, that whenever money or other valuable thing is hazarded and may be lost or more than the value obtained, and dependant upon chance, it is gaming. 2 Yerg. 281. And this court, in the case of The State vs. Smith, Meigs' Rep. 101, say, any contest or course of action commenced and prosecuted in consequence of a bet or wager, with the view to determine the bet or wager upon the event of such contest or course of action, is gaming. These two propositions clearly embrace a bet or Wager upon the result of a contest between two game cocks; and indeed it seems to us that there is scarcely any event more dependent upon both hazard and address than the result of such a contest. But we think that the question that cock-fighting is gaming has been expressly determined by the courts of Great Britain in adjudicating upon statutes of their own very similar in wording to ours. Under the statute of 33 Henry VIII, ch. 61, inflicting a penalty for keeping a house for unlawful games, a cock-pit is held to be a gaming house. 2 Hawkins’ Pleas of the Crown, 478, 529. This could not be unless a cock-fight were a game, because it is not specified by name in the statute, and therefore must be embraced by the word “game.” The statute 2 and 3 Ph. and M. 9, makes void every placard for keeping a bowling alley, dicing house, or other unlawful game. This has been construed to embrace cock-fights. 4 Com. Dig. 834. We therefore think that cock-fighting is gaming under our statutes.

3. It is contended that if it be gaming, yet the fact of betting upon the game is not charged with sufficient certainty, nor the fact that the game was played. The offence is charged in these words: “unlawfully did game, bet and hazard upon a match at cock-fighting a valuable thing, to wit,” &c. By the act of 1824, ch. 5, sec. 5, all the statutes made to suppress gaming are to be construed as remedial, and not as penal statutes; from this it results that in framing bills of indictment under them certainty to a common intent in charging the offence is all that is required; and this we think is done in this case. The charge is for an unlawful gaming upon a match at cock-fighting. If there had been no match fought there could have been no unlawful gaming, for a bet upon an event which is not determined is not unlawful. To constitute gaming there must be a wager, and the event upon which it depended must have been decided. In the case of Bennett vs. The State, 2 Yerg. 472, the bill of indictment, charged that the defendant did gamble, hazard and bet on a game of hazard and address commonly called thimble. This bill of indictment was held to be good. The indictment in this case must be held to be as good as that, for it is precisely the same in substance, and indeed almost in words. The word “game” is as strong and expressive as the word “gamble,’* and that constitutes the only difference in the mode of charging the betting in the two cases. And there is no allegation that the game commonly called “thimble” was played; the statement being in that case that he did gamble at the game, and in this that he did game at the match.

We therefore think that the court below committed no error in refusing to arrest the judgment, and affirm the same.  