State v. Barnes , 29 Me. 561 ( 1849 )

Howard, J.

Motions to quash, are addressed to the discretion of the presiding Judge. He may quash a defective indictment, or he may require the party to plead or demur, but he is not bound, ex debito justitice, to dispose of the prosecution summarily, on such motion.

After a party has pleaded, and after verdict against him, a motion to quash the indictment is not regularly before the Court, and the overruling it is not subject to exceptions. 1 Chitty’s C. L. 245—250; Bac. Abr. Indictment, K; 4 Hawk, b. 2, c. 25, § 146; Rex v. King, Str. 1268; Rex v. Johnson, 1 Wils. 325; King v. Wynn, 2 East, 226; State v. Soule, 20 Maine, 20.

The prisoner’s counsel contended that, “ rolling off to see who should pay for the use of the alley, or the playing for the liquor or cigars used, was not gaming within the true intent and meaning of the statute, and-that the evidence of two or three solitary instances of persons playing there for money in small and inconsiderable sums, without the knowledge of the defendant, would not constitute gaming, nor subject the defendant to the charge of keeping a house for the purpose of gaming, and requested the Court to instruct the jury in accordance with these positions.”

The presiding Judge, in the District Court, did not comply with this request, in terms, but instructed the jury, “ that, in order to sustain the indictment, the government must satisfy them that the building or house, referred to in the indictment, was kept by the respondent and was resorted to for the purpose of gaming, with his knowledge and consent; that playing at cards or bowls simply for amusement or exercise, was not gaming within the meaning of the statute; that to constitute that offence, the gaming must be for money or other things, and to make this house a gaming house, it must be kept and resorted to for the purpose of gaming for money or other things.”

These instructions were appropriate and correct, and were all that were required by the facts and law of the case, which were embraced in the request. Other instructions were given, upon other requests, to which exceptions were not filed.

The exceptions are overruled, and the case is remanded to the District Court for further proceedings.