
    6929
    STATE v. YOE.
    1. Indictment. — Finding by Circuit Judge that part of an indictment had not been stricken out sustained.
    
      2. New Triad. — Refusal of motion for new trial on ground that evidence warranted the conviction of appellants for keeping a gaming house affirmed.
    Before Prince, J., Greenwood, March Term, 1906, and Purdy, J., February Term, 1907.
    Affirmed.
    Indictment against Thomas Yoe and W. S. Yoe for keeping a gambling house. From sentence on verdict of guilty, defendants appeal.
    Messrs. Bilis G. Gray don and Wm. N. Gray don. for appellants.
    
      Mr. Wm. N. Gray don cites: To convict of keeping a gaming house the State must show it was such a house and that it was kept by defendant: 53 Mo. App., 571; 115 Ga., 570; 10 la., 453; 68 Ind., 46; 33 Me., 43; 35 Tex. App., 397.
    
      Solicitor R. A. Cooper, contra.
    Oral argument.
    June 27, 1908.
   The opinion of the Court was delivered by

Mr. Chief Justice Pope.

The defendants, W. S. Yoe and Thomas J. Yoe, were tried at the March term, 1906, of the Court of General Sessions for Greenwood county, before Judge Prince and a jury, upon the charge of keeping and maintaining a house for the purpose of gaming.

After the case had been committed to the jury and a charge from his Honor, Judge Prince, the jury returned a verdict of guilty; whereupon the defendants moved an arrest of judgment, which was granted. From the ruling of the Circuit Judge, the solicitor appealed to this Court.

The appeal came on to be heard on the 17th of January, 1907, the opinion 'being rendered by Mr. Justice Woods, which decision will be found in 76 S. C., 46, 56 S. F. Rep., 542, whereby this Court overruled the action of the Circuit Court, and remitted the case to the Circuit Court for sentence, and at the February term, 1907, Judge Purdy sentenced each of the defendants, Thomas J. Yoe and W. S. Yoe, to pay a fine of one hundred and twenty-five dollars and be imprisoned at hard labor in the penitentiary for three months.

The defendants, thereupon, appealed to this Court.

Judge Prince, when he heard the cause, held that the form of the indictment was good, holding that the words “against the form of the statute made and provided and against the peace and dignity of the State” was actually embraced in the indictment and was not meant to be stricken out. That while the solicitor did run his pencil a little too high up, he did not run his pencil through these words. Upon inspection of the indictemnt we agree with the Circuit Judge.

However, the finding of fact by the Circuit Judge is conclusive upon us.

All the other grounds of appeal, it seems to us, are included in the judgment rendered in the first appeal of this case, and we therefore overrule such grounds; being questions of fact, which we as a Court have nothing to do with.

The judgment of this Court is, therefore, that the appeal be dismissed, and the case is remitted to the Circuit Court to have Judge Purdy’s order carried into execution.  