
    David S. Davis v. State of Ohio.
    Indictment for permitting gambling must recite the parties, or allege that they are unknown. It must also specify whether the game was for money or other valuable thing.
    This was a writ of error, reserved.for decision in the court in bank in Montgomery county. Davis was indicted for permitting gambling in his house. The indictment set forth in *these •terms, “ that David S. Davis, late of, etc., in the county of Montgomery aforesaid, on March 6, 1834, and on divers other days and times, with force and arms, at, etc., unlawfully did suffer and permit certain evil disposed persons to play for gain, with cards, in a certain house, then and there in the possession of the said D. S. Davis, contrary to the statute,” etc. Davis pleaded guilty, and moved the court in arrest of judgment. The motion was overruled, and judgment entered that he pay a fine of fifty dollars, .and to reverse which this writ of error was sued out.
    The error assigned, was the too great generality of the indictment.
    R. A. Thruston, for Davis:
    It is a general rule, that all the circumstances which make up -and constitute an act of crime should be stated. 15 Arch.; 2 East, 30 ; 5 East, 244; 1 Chitty, 230.
    The indictment must set forth with certainty the particular •crime charged. 10 Peters. Ab. 470.
    The manner of the whole fact ought to be set forth. An indictment accusing generally is bad. 2 Hawkins Pl, ch. 25, 57, 59; 1 Salk. 196.
    P. P. Lowe, prosecuting attorney, for the state:
    It is not necessary, in an indictment for this offense, to give the names of the persons who are permitted to play. It is not necessary in England, and the courts of Massachusetts have so ruled it. Were the principle contended for adopted, it would always be in the power of a defendant to evade conviction, as he might, with legal propriety, call on fifty witnesses different from those named in the indictment, who would or might swear that the defendant permitted them to play about the same time as alleged in the indictment. There is the same necessity to adopt this form of indictment in this country, as against one keeping a common gaming house, either here or in England. 3 Pick. 281; 4 Pick. 251 5 Pick. 41, 42.
    “ Cards,” being denominated a game in the statute, it is not necessary to aver it to be a “ gaming device.” 3 Pick. 281.
   *Judge Collett

delivered the opinion of the court:

This indictment is founded on section 9 of the act for the prevention of gaming, which provides, “ that if any person or persons shall suffer any game or games whatsoever to be played for gain, upon, or by means of any gaming device, or machine of any denomination or name, in his, her, or their house, booth, or arbor,, or erection of which he or they have the care or possession, the-persons so offending shall,” etc.

An indictment charging an individual with an offense against-law must so describe the offense as to show that the law has been violated. The law operates upon a given state of facts. These facts must be set out in the indictment distinctly and clearly; first, to enable the defendant to make defense, if he be unjustly accused; second, if he be convicted, to enable him to plead and prove that conviction, in bar of a second prosecution, upon account of the same transaction.

We think this indictment should have either set out the names of the parties that it charges the accused permitted to play, or, if the names were unknown, it should have been so alleged. We think it should also have specified whether the playing was for money, or other valuable things. For these deficiencies, the judgment must be reversed.  