
    THE STATE OF MISSOURI vs. CHARLES AUSTIN
    ERROR TO ST. LOUIS CRIMINAL COURT
    STATEMETNT OP THE. CASE.
    At March term of Saint Louis criminal court, the grand jury of St, Louis county found ai>-_ indictment against Charles Austin for a violation of the act entitled uan act to license and tax billiard tables.5’ ft. C. 1845, 170. The indictment contains two counts. The one charging that the defendant “unlawfully did keep a billiard table without a license continuing in force. The other count charges that the defendant unlawfully did permit to be used andkept a billiard table without a license continuing in force.
    Afterwards, on the 25th day of May, 1848. the case came on for trial, and a general Verdict of guilty was rendered by the jury which tried the case, and assessed a fine against the defendant of four hundred dollars. '
    The defendant filed a motion for a new trial, which motion was, on the 8th June, 1849, overruled by the court.
    The defendant then filed a motion in arrest of the judgment, which was sustained by the court.
    Lackland for the State.
    The reasons contained in the motion in arrest upon which the Court gave judgment for defendant, are
    1st. That the indictment is informal, insufficient and illegal, and
    2nd, That no offence against the laws of the State is charged in said indictment.
    These two reasons amount to nothing more than that the indictment is insufficient in law. The first count in the indictment charges that Charles Austin, at, &c., unlawfully did keep a billiard table without then and there having a license therefor continuing in force, contrary, & c.
    The second count charges that said Charles Austin, at, &c.> unlawfully did permit to be used and kept a billiard table, without then and there, and on said other days and times, having atícense therefor continuing in force, contrary, &c.
    These counts are -based upon the 5th section of the act entitled on act to-license and-tax billiard tables, R. C. 1845, page 170. Both of these counts are in the words of the statute: and are therefore sufficient. State vs. Baugher, 3 JBlackf. 307; U. States vs. Wilson, 1 Bald. 78; State vs. Lancaster, 2 McLean, 431, State vs. Duncan, 9 Port. 260; State vs. Mitchell, 6 Mo. 147; State vs. Helm, 6 Mo. 263; State vs. Noel, 5 Blackf. 548; State vs. Click, 2 Ala. 26 Simmons vs. State, 12 Mo. 268.
    If either of the counts contained in said indictment are sufficient to support a general verdict of guilty. Harris vs. Purdy, 1 Ste. 231; People vs. Curling, 1 Johns. 320; Commonwealth vs. Bennett, 2 Virg. cases, 235; Turk vs. State, 7 Ham. (part 2d) 240; Curtis vs People Breese, 197; U. States vs. Pirates, 5 Wheat. 184; Kane vs. People, 3 Wend. 363; Kirk’s case, 9 Leigh. 627; State vs. Turner, 2 McMullen, 399; State vs. Davidson, 12 Verm. 300; Stale vs. Lassley, 7 Port. 26, Ala.; Fr-iar vs. State, 3 How. Miss. 422; Stone vs. State, -1 Spencer, 404; U. S. vs. Borough, 3 McLean, 405.
    In the court below it was contended by counsel for defence, that if one keep a billiard table in his parlor for his own private use, and the use of his friends and visitors, it would be an offence if the first.count in the indictment contain an offence. If one keep a billiard table for his own private use and the use of his friends, and without taking pay for games played, even in this case it is contended that it would be an offence under the statute, because the statute is general, and makes exceptions. All persons who keep billiard tables, and suffer games tobe played thereon, are equally liable, and it makes no difference whether the tables be used for hire, let, or amusement.
    But suppose, for the salte of argument, that one who keeps a billiard table for private use be guilty nf no offence. This is an exception then which is noteontained m the clause creating the offence, nor any where in the statute. And the indictment need not negative any such exception, but it is a matter available on the trial or by plea. See State vs. Buford, 10 Mo. 703.
    
      It was contended in the court below, that the second count was bad because it did not state the name of the person whom defendant permitted a billiard table. It is contended that this is no defect The count is in the language of the statute.
   Judge Hyland

delivered the opinion of the court.

This case is fully within the principle settled by this court at this term in the ease of the State vs. Kesslering. Both cases were indictments under the 5th section of the act concerning “billiard tables.” The points, therefore, ruled in Kesslering’s case must govern this, and reference is made to the opinion of the court in that case.—

The judgment of the criminal court is reversed, cause remanded, with directions to enter up judgment on the verdict found herein by the jury-

Judge Napton

dissenting. 
      
      o) See State vs. Baugher, 3 Blackford, 307; U. S. vs. Wilson, 1 Bald. 78; State vs. Lancaster, 2 McLean, 431; State vs. Duncan, 9 Part. 260; State vs. Mitchell, 6 Mo. 137; State vs. Helm, 6 Mo. 263; State vs. Noel, 5 Blackf. 548; State vs. Chick, 2 Ala. 26; Simmons vs. State, 12 Mo. 268.
     