
    The State vs. Posey.
    Where an indictment charged the defendant with unlawfully betting two dollars upon a horse-race with a person to the jurors unknown, which said horse-race was not run upon a path or track made or kept for the purpose of horse-racing: Held, that an indictable offence was charged.
    The grand jury of Claiborne county at the May term, 1838, of the circuit court, returned a presentment against Bennet H. Posey, in the following words*.
    “State of Tennessee, Claiborne county. Circuit court, May term, 1838. The grand jurors of the State of Tennes-seé, being duly elected, empannelled, sworn and charged for the body of the county of Claiborne aforesaid, upon their oaths present that Bennet H. Posey, late of said county, laborer, heretofore, to wit, upon the 3d day of March, 1838, in said county, unlawfully did bet two dollars with a person to the jurors unknown upon a horse-race, which said horse-race was not run upon a path or track made or kept for the purpose of horse-racing.
    “And the jurors aforesaid, upon their oaths aforesaid, do further present that Bennet H. Posey, late of the said coun» ty, upon the year and day last aforesaid, in the county of Claiborne, did bet and wager bank notes, being valuable things, with a person to the jurors unknown, upon said horse-race, which said horse-race was not run upon a track or path made or kept for the purpose of turf-racing, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”
    The defendant demurred and assigned for cause: 1. That there is no indictable offence charged. 2. That it is not alleged the race was along a public road. 3. That turf-racing is not indictable, and it is not alleged that the race was not on the turf. 4. The first count does not conclude against the form of the statute. 5. Nor against the peace and dignity of the State.
    On argument of the demurrer before his honor judge Anderson at September term, 1838, he sustained it, and gave judgment that the defendant go Hence, &c. The attorney general, Garrett, appealed in error.
    
      Attorney General, for the State.
    
      S. R. Rodgers, for defendant in error.
   Green, J.

delivered the opinion of the court. •

The act of 1820, ch. 5, exempts turf-racing from the pen--alties inflicted by the statutes against gaming. Match races for short distances not being regarded by sportsmen as turf-racing, the exemption in this act was not considered as extending to such races. The act of 1833, ch. 10, (Comp. Stat. 360,) explanatory of the act of 1820, ch, 5, declares that, “all horse-racing, without regard to the distance which may be run, where the same is run upon a track or path made or kept for the purpose of horse-racing, shall be deemed turf-racing within the meaning of the acts of assembly of this State.” This latter act evidently intended to change the law as it stood only as it regards the distance which may be run. It makes races of only a quarter of a mile turf-racing; but'it does not exempt them from the penalties of the acts against gaming unless they be run “upon a track or path made or kept for the purpose of horse-racing.” The indictment in this case alleges that the race was not run on a “track made or kept for horse-racing:” it is therefore not within the exemption of the act of 1833, and consequently is indictable as though that act had not passed. The legislature never intended to tolerate horse-races gotten up and run at distilleries, grog shops and musters, where the crowds of excited intoxicated persons would render it alike dangerous and demoralizing. Indeed the policy of the exemption of horse-racing from the penalties of the statutes against gaming may all cases be regarded as questionable; and it is the duty of the courts to construe these statutes so as to suppress the mischief of gaming, and consequently to exempt such only as fall within the express provisions of the law.

Reverse the judgment, .and remand the cause for a trial upon its merits.  