Obstruction of highways, streams, bridges, etc.

then and there situate, a certain lock and guard of said switch, with intent, then and there and thereby, feloniously, willfully, and maliciously, to throw from the track of said railroad a certain engine and certain cars then and there running upon said railroad. Ibid.

See Murder in Second Degree.

Repeal of statute by another.-Section 66 of the "act defining misdemeanors and prescribing punishment therefor" (2 R. S. 479), does not repeal section 29 of the "act defining felonies and prescribing punishment therefor" (2 R. S. 438). 37 Ind. 111,

Evidence. Under an indictment for maliciously placing pieces of timber upon a railroad track, it is not necessary that the proof should correspond with the allegation as to the number of pieces placed upon the track. One piece calculated to obstruct passing

trains is sufficient to constitute the offense. 42 Ind. 354.

Same-Presumption. On the trial of such an indictment, an in struction, that "if the proof shows conclusively that the defendant placed the timber upon the track of the railroad in question, in such a manner as to obstruct the passage of trains of cars over said road, the presumption is that the act was willfully and maliciously done," it was held was erroneeus. Ibid.

Interfering with railroad trains.

SEC. 1. That any person who shall shoot a gun, pistol, or other weapon, or throw a stone, stick, clubs, or any other substance whatever at or against any locomotive, or car, or train of cars containing persons, on any railroad in this state, shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined in any sum not less than ten nor more than one hundred dollars, and imprisoned in the county jail not less than ten days nor more than three months.

SEC. 2. In case any person on such locomotive, car, or train of cars shall be injured or wounded by any such act, the person so offending shall, on conviction, be deemed guilty of assault, with intent to commit murder, and be imprisoned in the state's prison for not less than one nor more than four years; and if death ensue, such person shall be deemed guilty of murder in the first degree, and punished accordingly.

SEC. 3. In case of prosecution under this act, it shall not

Obstruction of highways, streams, bridges, etc.

be deemed necessary in the information or indictment to name or set out the names of persons injured or wounded, except in case of prosecution for murder. 1 R. S. 751.

CHARGE.

at said

That A. B., on the day of —, in the year county, unlawfully did shoot a certain gun, which he then and there had and held in his hands, which gun was then and there loaded with gunpowder and shot, at, against, and upon a certain train of cars, containing persons, which train of cars was then and there running upon a certain railroad then and there situate, called the railroad.

Obstruction of street, etc., by railroad trains.

SEC. 1. That it shall be unlawful for any conductor running a railroad train to allow the same to remain standing across any public highway or street, to the hindrance of travel, for a longer time than ten minutes, and in violation thereof, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in any sum not less than ten nor more than fifty dollars, and shall be held in custody until the same is paid or replevied: And be it further enacted, it shall be the duty of any justice of the peace, or mayor of any incorporated town or city, upon affidavit by any person, to commence prosecution without delay: And be it further enacted, they shall be entitled to the same fees as in all similar cases. 1 R. S. 750.

CHARGE.

That A. B., on the - day of --, in the year at said county, was the conductor of a certain railroad train on the railroad, then and there being, and as such conductor, was, then and there, in charge of, and running said train, and that the said A. B., while a conductor and running said train as aforesaid, did, then and there, unlawfully allow said train to remain standing on the track of said railroad across a certain street, to wit, Main street, in the city of, in said county, for a longer time than ten minutes, to wit, for the space of one hour, and did, then and there, and thereby, greatly obstruct said street, to the hindrance of travel. (See an act concerning railroad officers in connection with running trains across other railroads, and to prevent accidents from carelessness in stopping. 1 R. S. 748.)

Keeping gaming house.

SEC. 6. KEEPING GAMING HOUSE.

SEC. 29. If any person shall keep, or suffer his or her building, arbor, booth, shed, or tenement, to be used for gaming, or, if any person being the owner of any building, arbor, booth, shed, or tenement, shall rent the same to be used for gaming, he shall be fined not less than fifty, nor more than five hundred dollars; and every person who may have been 'engaged in gaming in any such place, either by betting or otherwise, may be compelled to testify against the defendant as to all the facts, in any prosecution under this section. 2 R. S. 469.

SEC. 30. And it shall be sufficient evidence that any such building, arbor, booth, shed, or tenement, specified in the last preceding section, was rented for the purpose of gaming, if such gaming actually was carried on, and the owner or lessor thereof knew, or had good reason to believe that the lessee suffered any gaming therein, and such owner or lessor took no sufficient means to prevent or restrain the same. Ibid, 470. See also acts of special session of 1877, p. 80.

CHARGE.

day of in the year

and on

That A. B., on the divers other days and times between that day and the day of making this presentment, at said county, unlawfully kept a certain building, arbor, booth, shed, and tenement, to be used for gaming [or, unlawfully kept and suffered his certain building, arbor, booth, shed, and tenement, to be used for gaming], and then and there unlawfully suffered C. D. and E. F., and divers other persons to the jurors unknown, to play at a certain game of cards called "euchre," for money and other articles of value, [or, being then and there the owner of a certain building, arbor, booth, shed, and tenement, unlawfully rented the same to one C. D., to be used for gaming]. Bicknell's Crim. Pr. 428.

FORM AND CONTENTS.

Indictment-Duplicity.-An indictment charged that, at, etc., the defendant "unlawfully kept and suffered a certain building, room, and tenement, to be used for gaming, and then and there unlaw

Keeping gaming house.

fully suffered A. B., C. D., and divers other persons to the grand jurors unknown, to play at a certain game commonly called billiards, for money and other articles of value." Held, that the indictment was not bad for duplicity. 33 Ind. 304.

Indictment must state names of players, when.—An indictment for suffering a building to be used for gaming, must state the names of the persons who were suffered to game, or show cause for not doing so, and where this is not done, the objection may be taken by motion in arrest. 29 Ind. 212.

Names of players.-An indictment for keeping a house to be used for gaming need not state the names of persons who played there. 2 Ind. 308; Id. 499.

Same. By section 29 (2 R. S. 469), if any person shall keep his building, etc., for gambling, he shall be fined, etc.; or, if any person shall suffer his building to be used for gambling, he shall be fined, etc. Held-1. That, under the first branch of the section, there need be no averment in the information that gambling has actually taken place; 2. That an information predicated upon the second branch of the section must aver that gambling was suffered, and state the names of the persons suffered to gamble, or show a valid reason for not giving them. 11 Ind. 492. See 7 Blackf. 242.

Duplicity.-A count in an indictment founded on sec. 100, chap. 53, R. S. 1843, alleged that the defendant " did then and there suffer his house, building, room, arbor, booth, shed, and tenement, to be used and occupied for gaming." Held, that the count was not liable to objection for duplicity. 4 Ind. 141; 2 Id. 308, 370.

"A house" instead of "his house."—An indictment for keeping a gaming house was held not to be bad for charging that the defendant kept a house, instead of his house, to be used for gaming, the latter term being employed by the statute defining the offense. 3 Ind. 530.

Indictment held good.-An indictment, under the R. S. 1843, was as follows: The grand jurors impaneled, etc., upon their oath, present that A. B., on, etc., at the county, etc., aforesaid, and continuously from that day until the day of the finding of this bill of indictment, had and possessed a house, a room, a shed, and a tenement, situate in said county, and that said B. there, during all the time aforesaid, did keep and suffer his said house, room, shed, and tenement to be used and occupied for gaming, contrary, etc. Held, that the indictment was good. Held, also, that to sustain the in

Keeping gaming house.

dictment, it was sufficient to prove that the defendant kept either of the places specified for any length of time, to be used, etc., for gaming. 3 Ind. 567.

To sustain the indictment, it is not essential to prove that the gaming actually took place at the house, but the commission of the offense may be inferred from circumstances. Ibid.

Venue-Indictment held good.—Indictment, under the R. S. 1843, against A. B., containing two counts. The second, after the usual introduction, charged that the said A. B., on, etc., at and in the county aforesaid (the county of P.), did then and there knowingly keep and suffer his house, in which he kept his grocery to be used and occupied for the purpose of gaming at and with cards for money and other valuable articles, contrary, etc. Held, that the indictment was sufficient. It is error to quash an indictment containing a good count. 3 Ind. 570.

Not necessary that gambling actually occurred.-An indictment, under the statute of 1838, charging that the defendant kept a room "to be used and occupied for gambling" is sufficient; an allegation that gambling had actually taken place in the room not being necessary. 5 Blackf. 502.

Nuisance. The keeping of a gaming house is a nuisance. 1 Stephen's Crim. Law, 105.

Evidence-Sufficiency of.-Whether the circumstance of the defendant's permitting a roulette to be gambled upon once in his house, is sufficient evidence to support an indictment against him for keeping a room for gambling, is a proper question for the jury. The jury to whom such a cause is submitted may determine the law as well as the facts. 4 Blackf. 247.

Evidence. On the trial of on indictment charging the defendant with keeping his house to be used for gaming, the only evidence as to wagering was, that persons played upon a billiard table and the loser paid, for the use of the table, twenty or twenty-five cents, and the only charge in the indictment which this evidence. sustained was the charge that persons were permitted to play, etc., and bet and wager upon the result of the games "the hire of said billiard table." Held, that the evidence was insufficient, as it sustained only a part of the charge which was not well made. 50 Ind. 178.

Same. On the trial of such an indictment for keeping a gaming house, the evidence showed that the defendant kept a billiard room, in which players were charged a certain sum per game for the use