
    Commonwealth v. Feazle.
    December Term, 1851.
    Gamins — Public Places — Storehouse—Case at Bar. — A storehouse in a village, late at night, after persons cease to come to the store to purchase goods, and the door is locked, is not a public place, -within the meaning of the statute against gaming.
    This was a presentment in the Circuit court of Cabell county at the September term 1848, ag-ainst Everett *Feazle, for unlawful gaming by playing at a game of cards in the storehouse of Irvin Eusher, a public place in the county of Cabell. The defendant pleaded “not guilty;” and on the trial the jury found a special verdict as follows:
    That the defendant sometime in the month of March 1848, did play at a game of cards in company with others in the town of Barboursville, in the county of Cabell, at the storehouse of Irvin Eusher, mentioned in the presentment; that the persons engaged in playing at the time, had gathered together late in the evening at the said storehouse, and sat about the fire until the customers had retired, and until it was believed that no person would come that night for the purpose of trading; and until the tavern across the street had been closed, and the people in town had gone to bed. The door and windows being closed, some person having proposed a game, the door of the storehouse was locked, the key hole stopped, and every place through which it was supposed light might escape or be seen outside of the house, was closed, and a blanket or other cloth was thrown over the box upon which they played so as to prevent noise.
    At the time of the playing said Irvin Lusher had in his storehouse spirituous liquors, crackers, cheese, raisins &c., and the persons playing would draw liquor and drink it, and take crackers &c. and eat them, without asking for them; he being present and not objecting. And the said Irvin Eusher refusing to take any pay for the things thus taken, and also furnishing candles and fuel, the persons engaged in playing withdrew money from the common stock, and gave it to him for the light and fuel.
    Through the spring and winter of 1848, before the playing mentioned in the presentment, sundry persons had gone to said storehouse, and there played at cards three or four times: And at these times the doors, windows *&c. were closed in the same manner as before mentioned. On the night when the defendant played as above stated, when the proposal to play was first made Eusher objected on the ground that it was too early in the night, that persons might be up who might desire to come into the house.
    Upon this special verdict the Court with the consent of the defendant, adjourned to this Court the following questions:
    First. From the foregoing facts, is the place at which the playing took place, a public place, within the meaning of the law to suppress gaming?
    Second. What judgment ought the Court to give on the special verdict?
    
      
      Gaming — Public Places. — On tbis subject, see the principal case cited in foot-note to Bishop v. Com., 13 Gratt. 785; State v. Brast, 31 W. Va. 383, 7 S. E. Rep. 12. See also, Purcell v. Com., 14 Gratt. 679, and footnote.
      
    
   LOMAX, E,

delivered the opinion of the Court.

The Court is of opinion that the place in the proceedings mentioned, is not a public place within the meaning of the law to suppress gaming.

2d. That judgment should be rendered on the special verdict in favour of the defendant.

FIELD and ESTILE, J’s, dissented.  