Commonwealth v. M'Guire , 1 Va. 119 ( 1815 )

A N indictment was found by the grand jury of the District Court of Winchester in October 1796, against five persons, of whom the defendants Were part. It charged Jam és Heydon (being a dissolute and disorderly per son, having no visible estate, profession, or calling, to the jurors known, to support him, but supporting himself, so far as was known to the jurors, by gaming only), with being on the 30th July, 1796, at Winchester the keeper and exhibiter of an unlawful gaming table called faro-bank, and so being the keeper, with having exhibited the same in the tavern of James Edmondson in Winchester, to entice persons unlawfully to game and play at the said unlawful game; it charged Edward M‘Guire the defendant, Samuel Vowel, and J. Tidball the defendant, with having played at the said unlawful game, and with having won and lost divers sums of money; and it charged that James Edmondson was then and there the master and keeper of the said tavern, and was privy and consenting to the said unlawful gaming, and did not endeavor to prevent the same.

A venire facias issued against each of the persons charged, and was executed on the two defendants, returnable to the next district court. No appearance having been entered for them, a capias was awarded against them returnable October court, 1797. At that court they appeared by attorney, pleaded separately not guilty, and were each of them found guilty by the jury. During the same term, they prayed that the judgment on the verdicts might be arrested for the following reasons. “ 1st. Be-a cause the court aforesaid hath no jurisdiction of the of- “ fence stated in the said indictment. 2d. Because if it “ has jurisdiction there is error in the issue and verdict, “ aforesaid, inasmuch as the court under the act of assem- “ bly are to try such offence in a summary way, without “ pleadings, or the intervention of a jury. 3d. Because “ the said indictment charges three different offences “ against three different persons which cannot legally be “joined in one indictment, viz. One for exhibiting a faro “ bank by the defendant Heydon; one for playing at such “ bank by the defendants M'Guire and Tidball; and one “ against Edmondson, for suffering such conduct in his “ house. '

The question of law arising on these reasons was adjourned, and the general court, June 16th, 1798, consisting of Judges Parker, Jones, Tyler, Nelson, and White, decided, “ that the indictment against the defendants is “ good, and sufficient in law, and that the plea of the said defendants in arrest of judgment on the jury 's verdict “ ought to be overruled.’’