
    *Hord v. The Commonwealth.
    December, 1833.
    [26 Am. Dec. 340.]
    Grand Jury — Oath Administered by Clerk De Facto— Effect. — Upon a presentment for gaming, defendant pleads in abatement, that the clerk de facto, who administered the oath to the grand jury that ma.de the presentment, was not clerk de jure, at the timet Held, the plea is naught. •
    Gaming — Presentment—Allegations—Public Place.— Presentment for gaming charges defendant with playing at unlawful game “at the house of R. L. in B. in the county of P. william:” Held, the presentment is fatally defective in not charging that the house where &c. was an ordinary or a public place.
    Error to a judgment of the circuit supe-riour court of Prince William. At May term 1833, the grand jury’ made a presentment against Hord, “for playing at an unlawful game called faro at the house of R. Rips-comb in the town of'Brentsville’’ in that county. The defendant pleaded two pleas in abatement: 1. that the grand jury which made the presentment, was not duly sworn, because J. Williams," who administered the oaths to the grand jurors, was not the clerk of the court, or the clerk pro tempore, he not having been duly appointed and commissioned as such, at the time of administering the oaths to the grand jurors, nor taken the oaths of office as clerk, or clerk pro tempore, then or at any other time: and 2. that M. Sinclair, was the clerk of the court at the commencement of the term at which the presentment was made, and resigned his office of clerk, during the term and before the presentment made, and the office of clerk was v'acant at the time of the presentment, and so the grand jury was not legally impaneled and sworn. The attorney for the commonwealth put in a general demurrer to the pleas, in which the defendant joined. The court sustained the demurrer: and then, the defendant pleaded not guilty. The jury found him guilty; and thereupon, the court gave judgment against him for a fine of twenty dollars and the costs of the prosecution.
    And now he presented- a petition to this court for a writ of error, assigning as errors, 1. that no offence against the penal laws was charged in the presentment; and 2. that the *demurrer to the defendant’s pleas was improperly sustained. The writ of error was allowed.
    P. Harrison, for the plaintiff in error.
    The attorney general, for the commonwealth.
    
      
       Gaming— Presentment — Allegations—Public Place. —A presentment for playing- at cards must charge that the place at which it occurred was a public place at the time of such playing; the name of the place not of itself importing that it was at all times a public place. Bishop v. Com., 13 Gratt. 785, 787, citing the principal case, and Roberts’ Case, 10 Leigh 686.
      For further cases in point, see foot-note to Bishop v. Com., 13 Gratt. 785; monographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917; mono-graphic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
      Criminal Law — Information—Necessary Allegations. —An information is fatally defective which fails to allege all the facts and circumstances necessary to constitute the offence with which itis sought to charge the defendant. Com. v. Guigon, 1 Va. Dec. 599, citing the principal case, Com. v. Israel, 4 Leigh 675. Roberts’ Case, 10 Leigh 686, Clark’s Case, 6 Gratt. 677, and Bishop’s Case, 13 Gratt. 786.
      See further, monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   PER CURIAM.

The pleas filed on this case are insufficient; and consequently there was no error in sustaining the demurrer thereto. But the presentment is radically defective in this, that it is not charged that the playing was at an ordinary or other public place; and therefore, the judgment is erroneous, and must be reversed.  