
    Ann Reynolds ads. The State.
    An indictment under the Act of 1816, to prevent gaming, against a person for permitting persons to play at cards in her house, being a public house, is not good, unless it state that the persons were playing at such games as were not excepted in the Act; and where a conviction has taken place on such an indictment, judgment will be arrested.
    Where, in the enacting clause of an Act, exceptions are enumerated, it will be necessary, in an indictment under the Act, to negative the exceptions.
    The defendant in this case was indicted under the Act of 1816, entitled “An Act the more effectually to prevent the pernicious practice of gaming.’’ The Act provides, that if any person or persons, *shall play, &c., “ at any game or games, with cards or dice, &c., except the games of billiards, bowls, chess, backgammon, drafts, or whist, when there is no betting on the said games,” &c., such person or persons, upon being convicted thereof, shall be imprisoned, &c. The Act then goes on to subject the keepers of public houses, under the like circumstances, to the same penalties.
    This indictment states, that the defendant, in a certain public house, being possessed and occupied by her, permitted “ Cassity, and diver other idle and disorderly persons, to be and remain, and then and there, in her presence, to play at cards, contrary to the form of the Act of Assembly.”
    The defendant was convicted, and this was a motion in arrest of judgment, on the ground that there did not appear to be any offence charged in the indictment.
    
      Levy, for the motion. Stark, Solicitor, contra.
    
      
       6 Stat. 26.
    
   The opinion of the Court was delivered by

Nott, J.

Ah indictment is said to be a plain, brief, and certain narrative of an offence committed by any person, and of those necessary circumstances that occur to ascertain the fact and its nature. And it must state the crime with as much certainty as the nature of the case will admit. In this case the defendant is merely charged with permitting persons to play cards at her house. And as that is not, under all circumstances, unlawful, she may, for anything that the Court can perceive, be innocent of any offence.

But, it is contended, that it is not necessary to state in an indictment, that the defendant does not come within the exceptions of the Act, or to negative the provisos it contains. This appears to be a correct position, when the provisos and exceptions are in distinct clauses of the Act. But if they are contained in the enacting clause, it will be necessary to negative them, in order that the description of the crime may, in all respects, correspond with the act. 1 Chit. Crim. *Law, 192, 284. The r*™» indictment ought, therefore, to have stated, that the persons so *- ' playing, were betting on the game, or it should have negatived the exceptions, or in some other manner set out the facts, so that it might appear that the defendant had committed some one of the offences prohibited by the Act. The Court is of opinion, that the offence is not set out with sufficient precision, and that the judgment must be arrested.

Colcock, Gantt, Johnson, Richardson, and Huger, JJ., concurred.

7 Rich. 482; 11 Rich. 506; 4 Rich. 194.  