
    The State v. Prewitt.
    Ah indictment which charged that the defendant “did bet ata certain game known and called “rondo, then and there exhibited and played on a certain gaming table called rondo, the “saidgamo of rondo then and there being a gambling device,” was held to be sufficient, rejecting as surplusage the words “the said game of rondo then and there being a gambling device.”
    Appeal from Cass. This was an appeal by the State from the judgment of ■the court sustaining a motion to quash an indictment. Tlie indictment charged •that the defendant “ did bet at a certain game known and called rondo, then ‘“and there exhibited, and played ou a certain gaming table called rondo, the “said game of rondo then and there being a gambling device,” &c.
    
      Attorney General, for appellant.
    I. The first objection anticipated is that “ no indictment will lie under article 5G6 for betting on any gambling table organic not designated by name in article 565.” A conjecture to that effect was intimated in Crow v. The State, but ilie law has been ruled to be otherwise in Randolph v. Tlie State, lately decided at Galveston. In that case the •coijrt sustained an indictment under article 506 for betting on a game not named in article 5G5, that is, rondo.
    II. "Gambling device.” The offense here charged — “the betting upon a “game called rondo, then aud there exhibited, and played on a gaming table “ called rondo ” — being completely charged before we can come to tlie part ■of the indictment.calliug it a “gambling device,” this additional designation would be mere surplusage upon general principles, bat it will be deemed much, more clearly so when we consider of the proper construction of those words in the statute.
    III. It remains only to saj^ that no species of gaming or dissipation has ever been more injurious to any country than this very game is proving' to the youth of our country. While tiie legislature have shown in the statute-before us a salutary regard for the morals''of the people, and avail themselves of the most careful, comprehensive, and searching words of which our language-is capable to reach, and embrace, and fix, by tiie most liberal relaxations in. allegations and in proof, in favor of the State, every possible offense of this nature, will tiie courts, is it not their duty to, second these benelicie.ut efforts by a generous, a remedial construction of these statutes, joro bono publico, yes,, for the greatest good of tiie whole people? Or will the courts lend a kind ear to hypercritical exceptions of an immaterial character? It is always the duty of tiie courts to carryout tiie clearly-expressed will of the legislature!, especially for the advancement of the public good and tiie promotion of morality and virtue. The legislature in 1S4.S greatly reduced the penalties for these offenses, in the hope that the reduction would render the courts less critical and the. juries less indulgent on the question of guilty or not guilty. The change has succeeded well with tiie juries and it is believed it will with tiie courts.
    
      J. T. Mills and M. D. Rogers, for appellee.
    I. The material allegation intended to be relied upon by the district attorney is apparent., and the offense made to consist in tiie defendant’s betting on a game called rondo, which game is alleged to be “a gambling device.” Now, is the game of rondo a gambling-device? To determine this question it is only necessary to look to tiie statute and ascertain by it what is “agaming table,” and what is a “bank” inhibited' by its provisions.
    The statute, we think, includes all the gaming tables and hanking games by name known to and inhibited by our laws. There is no pretense that the defendant bet at either of the “gaming tables ” or “banks ” enumerate]! in the statute, but that he bet at a certain game known and called rondo. A gambling device must from its character and nature be without a name, for the moment it is christened with a name it enters into the denunciation of games and can no longer he a device. Nor can it be a “stratagem or evasion of the “ law by a change of the name without changing essentially the principles of “the game,” (Crow v. Tlic State, 6 Tex. It., 334j) for tiie reason that the game Of rondo does not appear from the indictment to bear any resemblance to either of the games prohibited by statute. But if it did, the term “gambling device ” is. too general and indefinite to support tiie indictment. (Republic of Texas v. Binum, Dai. Dig, 375.) Courts have not legislative powers, and can only determine what the law is and not what was intended, beyond the manifest import of the language of the law, and more especially in construing criminal law.
    II. But we may he told that the indictment is sufficient without tiie words “gambling device,” and that they may be treated as surplusage. This being done the charge will he that the defendant “bet at a certain other game, “known and called rondo, then and there exhibited and played oil a certain “gaming table called rondo.” This offense (if one at all) as here described is no where named in our statutes, and it may be well questioned whether that against which there is no prohibitory statute is indictable: (Crow v. The State,. 334.) General terms such as “and othor articles of value ” afford no sufficient grounds to support an indictment, being too indefinite to impart any offense. (Republic v. Binum, Dal. Dig., 37G.)
    Again, the charge in'tlie indictment should be will) such reasonable certainty as not only to put the accused fully on his defense, but to protect and secure him from a second conviction for the same offense. Is this done? Wo. thiulc not. The game is called rondo and the gaming table is called “rondo.” The game “rondo,” as played, has its opposite, called cuolo; and tiie game-Is (wo suppose) as much cuolo as it is “rondo.” Now if the party is convicted •of rondo, lie miglit as easily be convicted of cuolo for tlio samo bet. Nor does it seem that tlie table ou which tlie game is to have been played is described with reasonable certainty. It is named “a certain gaming table called rondo.” 'Should it not have said a certain gaming table called a rondo table? Hondo is set out as the name of the “game.” If it was a game of billiards played, to describe tlie same as being played on a certain gaming table called “billiards,” would fall short of “describing tlie gaming table” as required in article 1470, {Ilart. Dig.)
   Wheeler, J.

The objections urged to the sufficiency of this iudictmc-ut are •substantially the same as those relied ou for reversal of the judgment in the •case of Estes v. The State, just decided. In that case they were considered .and disposed of in reference to the argument of counsel in both cases, and their examination need not be hero repeated.

The words in the indictment characterizing the offense as a gambling device may bo rejected as surplusage; and we need only add that for the reasons stated in the case referred to, we think the indictment in this case clearly sufficient, and are of opinion therefore that the court erred in its judgment.

The judgment must therefore be reversed, and the cause remanded for further proceedings,

Reversed and remanded.  