
    Dempsey B. Cain vs. The State of Mississippi.
    The statute which requires the clerk to take down the charges given or refused by the circuit judge, and makes them a part of the record without bill of exceptions, does not apply to criminal cases.
    In an indictment for betting on a presidential election, it is not necessary to allege that the election was held ; the indictment alleged the bet to have been made upon the result of that election, “to be holden ” on a certain day ; the election is provided for by a public law; the event was therefore sufficiently certain.
    The statutes against gaming are remedial and not penal; and are therefore not to be construed strictly.
    A. agreed with B. that if the Cass electors obtained a majority of two thousand votes in this state, at the recent presidential election, he would make B. a present of a coat, but if they did not, B. was to make him a present of a coat; after the election B. paid A. the money instead of the coat: Held, the agreement was a mere evasion, and B. being indicted for the bet and convicted, must undergo the penalty of the law.
    In error from the circuit court of Franklin county; Hon. Stanhope Posey, judge.
    Dempsey B. Cain was indicted for betting upon an election ; the indictment contained two counts. On the first there was a verdict in favor of the defendant. The second was as follows: “And the jurors aforesaid, upon their oaths aforesaid, in the name and by the authority ,of the state of Mississippi, do further present, that the said Dempsey B. Cain after-wards, to wit, on the day and year aforesaid, 1st of October, 1S48, at the county aforesaid, did then and there bet a certain valuable thing, to wit, a certain fine coat, upon the result of a certain election to be holden on the seventh day of November, in the year of our Lord one thousand eight hundred and forty-eight (according to law) in said state, for six electors for said state, to vote for a President and Vice-President of the United States of America, against the peace and dignity of the state of Mississippi.”
    The defendant pleaded not guilty. The evidence in the cause was as follows: Willis Byrd testified that he and the defendant did not bet on the result of the election for six electors, but that he promised in the county of Franklin, on the day charged -in the indictment, to make a present to the defendant of a nine or ten dollar coat if Cass got 2000 votes more than Taylor. And if Cass did not get that majority, defendant was to make a present of a nine or ten dollar coat to witness; that he voted for six electors, and that there was an election at which electors were voted for at Jones’ Precinct, where he voted; that Cass and Taylor were candidates for president, and the persons for whom the six electors to be elected were expected to vote; that there was nothing up in the hands of a stake-holder at the time, and that defendant afterwards in Adams county paid him nine dollars; that this was in lieu of the present he expected to receive, on account of its being conceded that Cass did not get 2000 votes in the state of Mississippi more than Taylor. The way it was determined who had the present to pay, was by knowing the majority received by the electors in the state; and there was a dispute about the amount of the present.
    The state then introduced a writ of election, directed to the sheriff of that county, directing him to hold an election of six electors for president and vice-president, and proved by the sheriff that an election was held on the day of election mentioned in the indictment.
    The court gave certain instructions for the state, and refused those asked by the prisoner; but the instructions were not embodied in a bill of exceptions, though copied by the clerk in the record. They are not set out because disregarded by the court.
    The jury found the prisoner guilty; he moved in arrest of judgment, because the indictment did not charge that the election had been holden. This was overruled. He then moved for a new trial, which was refused. The court fmed him- twenty dollars and the costs of the prosecution, when he sued out this writ of error.
    
      Cassidy and Sanders, for plaintiff in error,
    
    Cited Hutch. Code, 951, 953; 1 Chit. Or. Law, 662; 4 Bl. Comm. 325; 3 Burr. 901; 1 East, 146 ; Foster, 194; 3 Inst. 41; 2 M. & S. 386;' 2 Leach, 594; 1 Chit. Cr. Law, 382; lb, 114. '
    
      D. C. Glenn, attorney-general for the state,
    Insisted the indictment was sufficiently certain, and the proof conclusive of guilt.
   Per curiam.

The plaintiff in error was indicted for betting on the election of 1848, for electors for president and vice-president. Several reasons are urged for the reversal of the judgment, which we cannot notice. The statute which requires the clerk to take down the charges given or refused, and make them a part of the record, without bill of exceptions, does not apply to criminal cases. We therefore pass over the alleged error in this particular.

A motion was made in arrest of judgment, because the indictment does not charge that the election was holden. The indictment charges that the bet was “upon the result of a certain election to be holden on the seventh day of November, in the year of our Lord one thousand eight hundred and forty-eight, according to law in said state, for six electors, &c.” The election is provided for, and directed to be holden by a public law. The event was therefore sufficiently certain, and it was not necessary to charge that it had occurred. The statute on which the indictment is founded is declared to be a remedial, and not a penal statute. The object of this provision must have been to get rid of the general rule which requires that penal statutes should be construed strictly.

A new trial was moved for on the evidence. It was in proof that the parties mutually agreed that a present of a coat should be made to the defendant, if the Cass electors obtained a majority of 2000 votes, but if they did not, the defendant was to make the other party a present of a coat. This was mere evasion. It was in proof that the election was afterwards holden, and the bet was paid in money. There is no pretence for holding the verdict to be against law or evidence.

Judgment affirmed.  