Commonwealth v. Price , 8 Va. 757 ( 1837 )

At the trial on the plea of not guilty, the commonwealth proved by T. G. Godwin, in the indictment named, that the defendant, between the periods of December 1833 and April 1834, played at a game of cards called loo, with said witness and some other persons not recollected, in a room of a tavern house in the town of Fincastle, which room was then occupied by said witness as .a chamber, and which tavern was then occupied and kept as a house of public entertainment by the *defendant: but the said witness further proved that W. A. M’Dowell and W. Little, in the indictment mentioned, were not engaged in said playing, and were never known by him to play at the game of loo at said tavern, but that they had played at other games at said tavern, with the knowledge of the defendant. I was also proved that said tavern was at the time of said playing, and continued to be at the time of the trial, the property of J. Rudisill, and was rented to the defendant by him, previous to the said playing, for the term of one year, beginning in December 1833; that the said Rudi-sill, at the time of the said renting, had a license for keeping the said tavern, which expired on the first of May next following, which license was never transferred to the defendant, nor was the defendant licensed as keeper of the said tavern at the time of said playing, though he was the keeper of the said tavern under a regular license at the time of the trial. Whereupon the court, on the motion of the attorney for the commonwealth, instructed the jury, that if the evidence proved the defendant to have suffered the game of loo to be played in his tavern, though by other persons than those named in the indictment, it was sufficient to sustain the indictment; and that if the defendant was keeper of the tavern at the time of such playing, his having a license at the time was not necessary to his conviction. The jury found the defendant guilty; and the court being about to render judgment against him, he moved the court for a new trial, on the ground of misdirection. Whereupon the court, with consent of the defendant, adjourned to this court the following questions: 1. Was the court correct in the aforesaid instructions to the jury? 2. Can judgment be rendered for revocation of the defendant’s license, acquired since the offence was committed?

*The general court responded to the questions adjourned, as follows: “This court is of opinion and doth decide, 1. That there is no error in the instructions given to the jury by the circuit court. 2. That judgment cannot be rendered for revocation of the defendant’s license, acquired since the commission of the offence.”