Commonwealth v. Baker , 155 Mass. 287 ( 1892 )

Morton, J.

Without considering the requests of the defendant successively, we think it enough to say that we discover no error in the instructions as given, nor in the refusal to give such requests or make such rulings as were desired. The form of the complaint was sufficient. The court to which the complaint was addressed was sufficiently described. Commonwealth v. Hoar, 121 Mass. 375. Commonwealth v. Clancy, 154 Mass. 128. The time and place were sufficiently set out, and -it was not necessary to describe the kind of illegal gaming that was carried on. Commonwealth v. Logan, 12 Gray, 136. Commonwealth v. Langley, 14 Gray, 21. Commonwealth v. Edds, 14 Gray, 406. The allegation that the tenement was resorted to for illegal gaming was sufficient. It was not necessary to aver that it was used as a common gaming-house for the purpose of gaming for money, and that idle and dissolute persons resorted to it for that purpose. Commonwealth v. Goulding, 135 Mass. 552. Commonwealth v. Clark, 145 Mass. 251.

, It was a question of fact for the jury whether the defendant did or did not keep the tenement during a substantial portion of the time alleged, and whether, if kept by him, it was resorted to for illegal gaming while he kept it, and whether “ policy ” was a form of illegal gaming. The instructions requested by the defendant as to the burden of proof, and what it was necessary for the Commonwealth to prove in order to convict the defendant, and as to what constituted illegal gaming, were given substantially as requested by him, with the exception of the third request, which was properly refused in the form in which it was presented. It is enough to say of this» request, that it asked the court to rule entirely as matter of law upon what, to some extent at least, were questions of fact for the jury. The court rightly refused to rule as matter of law that officer O’Brien was an accomplice. Commonwealth, v. Willard, 22 Pick. 476. Commonwealth v. Downing, 4 Gray, 29. It follows that the other rulings requested, which were based on the assumption that O’Brien was as matter of law an accomplice, were also rightly refused.

Exceptions overruled.