
    Smith vs. The State.
    If a party plays at a game, knowing that others are betting, he is guilty of gaming under statutes passed to prohibit gaming.
    Smith was indicted in the Circuit Court of Franklin county.
    The indictment charges, that “Smith did bet, wager and gamble, at a game called pitching dollars, he the said Smith then and there betting on said game.”
    The defendant was tried by Judge Marchbanks and a jury of Franklin county.
    It was proved that defendant and one Anderson pitched dollars; that a dollar was bet on each game; but witness could not state whether it was the defendant or defendant’s father that bet the dollar on the game; that one or the other did. The bet was made in the presence of the defendant, if not by him.
    The judge charged the jury, that if they should regard the evidence as establishing the fact, that defendant and Dickerson pitched dollars, and the father of defendant bet a dollar on the game with Dickerson, and the defendant knowing they had bet, such pitching would be gambling under the statutes.
    The jury returned a verdict of guilty. The defendant moved the court for a new trial. The motion was overruled, and the defandant fined. He appealed.
    
      H. L. Turney, for the plaintiff in error.
    
      Attorney General, for the State.
    The second section of the act of 1799, (N. & C.. 356,) provides, that any one shall be fined who shall play at, or encourage or promote any game of .hazard or address. The act of 1803, renders such persons indictable. All persons aiding, assisting or encouraging gaming, though they do not bet, are guilty of gaming as principals. 3-Yerg. 134: '5 Yerg. 144.
    The statutes against gaming are to be construed as remedial, and not as penal statutes. Act of 1824, ch. 5. See Bagby vs. State, 1 Hump. 490, where this statute is acted on. This statute was intended to cure defects in indictments, and authorize the court to extend the statute to cases within the spirit of the acts, and within the mischief intended to be remedied.
   Green, J.

delivered the opinion of the court.

The only question in the case is,, whether a party who engages in a game of hazard or address, upon which he knows others are betting, is indictable and punishable for gaming, although he may not bet any thing himself. -

The act of 1799, ch. 8, sec. 2, (N. & C. 356,) provides, that if any person encourages or promotés any game of hazard or address for money or other valuable thing, he shall forfeit and pay the sum of five dollars. The act of 1803, ch. 12, sec. 2, provides, that any person who shall play within the meaning of the act of 1799, ch. 8, shall be liable to indictment or presentment.

The court has repeatedly held, that by virtue of these acts a person encouraging or assisting the playing at cards, or other game for money, is indictable although he does not bet. 3 Yerg. Rep. 134: 5 Yerg. Rep. 144.

If a party plays at a game upon which he knows others are betting, he becomes thereby a guilty participator in the gaming although he may not bet himself.

The illustration of counsel opposed to this view of the case, that upon the principle here stated, a candidate for office is guilty if he knows that others bet on his election, does not apply..

Betting on elections is not embraced in the general laws against gaming, but is prohibited by a special statute.

We think there was no error in the charge of his Honor to the jury, and affirm the judgment.  