
    Fugate vs. The State.
    1. Promoting and encouraging gaming is indictable by the statutes of this State.
    2. An indictment for promoting and encouraging gaming, is sustained by proof of acts of gaming.
    The grand jury of the county of Knox, indicted John Fugate, at the November term,' 1840, of the circuit court for said county, of encouraging and promoting gaming.
    The indictment charged, that John Fugate, in the county of Cocke, in the town of Newport, on the 17th November, 1840, “did unlawfully promote and encourage a game played at cards for money, contrary to the form of the statute,” &c.
    The defendant pleaded not guilty, and the cause was submitted on this plea, to a jury, at the March term succeeding, R. M. Anderson, judge, presiding.
    It appeared in evidence, that the defendant did at the time and place mentioned in the indictment, with divers other persons, play at cards for money. Anderson, judge, charged the jury, that in misdemeanors there were no accessaries, but that all were principals, and that, although the proof might show that the defendant played at a game of cards for money, yet such proof would sustain this indictment, and that the defendant might be rightfully convicted upon such proof, of promoting and encouraging gaming. The jury rendered a verdict of guilty against the defendant.
    On a subsequent day of the term, he moved the court to grant him a new trial, on the ground, that the testimony did not sustain the indictment. This motion was overruled. He moved also in arrest of judgment upon the grounds,
    1st. That encouraging and promoting gaming was not an indictable offence by the statutes, but only subjected the offender to a penalty of five dollars, upon due conviction thereof before a justice of the peace.
    2d. That there being no accessaries in misdemeanors, the defendant should have been indicted as a principal for gaming, and encouragement and promotion of gaming, submitted in evidence.
    This motion was overruled, and the defendant sentenced to pay a fine of five dollars, and costs of prosecution.
    From this judgment he appealed in error,
    
      Hynds, for Fugate.
    
      Attorney General, for the State.
   Tueley, J.

delivered the opinion of -the court.

The plaintiff in error was indicted for the offence of promoting and encouraging gaming. Upon trial, the proof showed that he actually gamed. Upon this, two questions are made.

1st. Is promoting and encouraging gaming indictable?

By the 2d section of the act of 1784, ch. 18, it is provided, that any person who shall encourage or promote gaming, upon conviction before a justice of the peace, shall forfeit and pay the sum of five dollars. The 2d section of the act of 1824, ch. 5, makes it the duty of grand jurors, when they shall have a well-grounded belief, that the offence of gaming has been committed, to apply to the court for subpoenas, to bring before them any person or persons as witnesses, whom they may believe-to have a knowledge of such offence; and such witnesses, when they appear, shall give evidence of any offence they may know against any of the statutes to repress and prevent gaming. Now, the act of 1789, ch. 8, is a statute to prevent and repress gaming: and as the act of 1824, ch. 5, makes it the duty of a witness, before a grand jury, to give information of any violation of its provisions, it follows, that if they know of any persons who have encouraged or promoted gaming, it is their duty to inform on them. And for what purpose ? Just to let the grand jurors know, without their having power to act? Certainly not; but with the view, that they may be presented and indicted. 5 Yerger, 144.

But it is said, 2ndly, that the indictment is for promoting and encouraging gaming, and the proof shows the offence to have been one of actual gaming, and, therefore, the allegation in the indictment, is not proven.

We cannot concur in this reasoning. .If standing by and inciting and tempting • others to game, be encouraging and promoting gaming, a fortiori, is the becoming an actual participator therein.

Let the judgment of the circuit court be affirmed.  