Professional gambling. of the tables, the loser paying such sum; and a witness testified that he had played a game and lost it, and paid the defendant for the table; that he had seen the defendant in the saloon frequently, and had seen his clerk there; that he saw games played, and that the loser always paid for the table. He could not swear positively that the defendant always knew the terms on which the games were played, but thought he had a good opportunity to know that the loser paid for the table. Held, that this evidence sufficiently showed that the defendant had a knowledge that his tables were used for gaming. 33 Ind. 304. Same.-Suffering playing for beer, cigars, etc., in one's house, etc., is keeping a gaming house within the meaning of the statute. 6 Ind. 30. SEC. 7. PROFESSIONAL GAMBLING. Keeping gaming apparatus-Counterfeiting apparatus. SEC. 74. Every person who shall be the keeper or exhibitor of any gaming table, roulette, shuffle-boards, faro bank, ninepin alley or billiard table, or any other gaming apparatus, for the purpose of wagering any article of value therein, shall be fined not exceeding one thousand dollars, to which may be added imprisonment not exceeding six months. 2 R. S. 480, 481. SEC. 38. Any person who shall be the keeper of any gaming apparatus for the purpose of winning or gaining any article of value, or who shall get his livelihood by gaming, or who shall be found wandering about from place to place, in the habit or practice of gambling, shall be deemed a professional gambler, and, upon conviction, shall be imprisoned in the state's prison not less than one year, nor more than five years, and be disfranchised for any determinate period; or may be imprisoned in the county jail not less than three nor more than six months, and disfranchised for any determinate period. Id. 442, 443. SEC. 2. Any male or female person, who shall be the keeper or proprietor, or exhibitor of any gaming table or device, or gambler's implements, or who shall be an assistant or attend Professional gambling. ant on any gaming table or apparatus, or in any gambling house, shall be deemed a gambler. SEC. 3. Any person who, for the purpose of gaming with cards or otherwise, travels about from place to place, or shall frequent any place where gambling is permitted, shall be deemed a professional gambler. SEC. 9. Any person convicted of being a gambler or professional gambler, under the second and third sections of this act, may be fined in any sum not less than twenty-five nor more than one hundred dollars for each offense; and it shall be lawful for the officers to seize and destroy all gaming apparatus found in any building kept for gaming purposes. Acts, 1877 (Spec. Session), 81, 82. CHARGES. 1. Keeping faro bank. (Sec. 74.) That A. B., on the day of at said county, unlawfully was the keeper and exhibitor of a certain gaming apparatus, to wit, a certain faro bank, and then and there unlawfully kept the same for the purpose of wagering, winning, and gaining therein money and other articles of value. (This form may also be applicable to sec. 2, p. 81 of acts of 1877.) 2. Professional gambling. (Sec. 38.) in the year and on That A. B., on the day of divers other days and times between that day and the day of making this presentment, unlawfully and feloniously was found wandering about in said county, from place to place, in the habit and practice of gambling, to wit, playing at games of cards commonly called "poker," for money and other articles of value. FORM AND CONTENTS. Billiard table.-Indictment under § 38 of the crimes' act, for unlawfully and feloniously keeping and maintaining, for the purpose of thereby gaining money and articles of value, a gaming apparatus, known as a billiard table, and suffering and procuring a certain person to play the game of billiards thereon, receiving money therefor, etc. Held, that as the keeping of a billiard table, for the purpose of wagering any article of value thereon, is specially prohibited by § 74 of the act defining misdemeanors, it must be held Professional gambling. that such tables are not within the meaning of § 38 of the crimes' act. 15 Ind. 474. See 50 Ind. 178. Misdemeanor-Felony.-The keeping of a gaming apparatus, commonly called a "trick knife," for the purpose of wagering, winning and gaining money and articles of value thereon, is a misdemeanor, and not a felony. 55 Ind. 99. Same-Repeal of statutes-Construction of statutes.-Section 38 of the act of 1852, defining felonies (2 R. S. 1876, p. 442), so far as it relates to the keeping of gaming apparatus, is repealed, by implication, by the act of March 15, 1875 (2 R. S. 1876, p. 480), amending the seventy-fourth section of the act of 1852, defining misdemeanors. Ibid. Professional gambling.-Indictment for professional gambling, in two counts. The first charged that the defendant, at Marion county, etc., was engaged in the habit and practice of gaming, and did then and there get his livelihood thereby. The second count charged that the defendant, at, etc., was wandering about from place to place, in the habit and practice of gaming. The evidence showed that the accused had been for two months traveling about and gaming for a livelihood, but that he had come into the county where he was indicted on lawful business, and had not gamed therein. Held, that the evidence did not sustain the indictment. 25 Ind. 415. Not necessary to allege that game was played.-In an indictment under section 38 (2 R. S. 442) for being the keeper of a gaming apparatus, it is not necessary to allege that any game was played with or on the apparatus, and therefore it is not necessary that any names should be stated as the names of persons who played. 50 Ind. 292. Same-Statute.-Said section 38 of the chapter relating to felonies, so far as the keeping of a gaming apparatus called a "wheel of fortune" is concerned, was not repealed by section 74 of the subsequent statute relating to misdemeanors (2 R. S. 480). Ibid. Evidence-Hearsay.-Upon the trial of a defendant indicted for being "unlawfully the keeper of a certain faro bank, for the purpose of wagering thereon articles of value," the court, over the objection of the defendant, permitted a witness on behalf of the state to testify that he had understood "from others, that the defendant" and another "were the owners of the faro bank," and that he knew its ownership only "by hearsay." Held, that the evidence was merely hearsay, and incompetent, and its admission erroneous. 57 Ind. 127. Professional gambling. Billiard table.-The keeper of a billiard table, though he do not play on it himself for money nor suffer others to do so, yet if, for a stipulated compensation per game, he allow any person to use it, he is liable to an indictment. 5 Blackf. 560. Keeping counterfeiting apparatus. SEC. 37. If any person shall knowingly retain in his possession any die, plate, or other apparatus made use of in forging or counterfeiting any gold or silver coin, which is or may be current or in circulation within this state, or in forging or counterfeiting bank notes or treasury notes, such person shall, upon conviction thereof, be imprisoned in the state prison not less than two nor more than five years, and fined not exceeding one thousand dollars. 2 R. S. 442. CHARGE. day of A. D. at said county, That A. B., on the unlawfully and feloniously, knowingly retained in his possession certain dies and plates made use of in forging and counterfeiting certain silver coin then current and in circulation in the State of Indiana, commonly called Mexican dollars. Bicknell's Crim. Pr. 378. Description of instrument.-An indictment against a person for retaining in his possession an instrument for counterfeiting, etc., should describe, by name or otherwise, the instrument retained, and allege that it was knowingly retained. 5 Blackf. 573. Surplusage.-An indictment charged the defendant with knowingly retaining in his possession certain dies, and plates, and other apparatus and instruments, made use of in forging, etc. Held, that the words "other apparatus and instruments," in the indictment, were surplusage. Held, also, that to convict the defendant, it must be proved that he knowingly retained in his possession some instrument, named in the indictment. 6 Blackf. 95. The following are cases cited by Bishop, in his work on Crim. Proced. §§ 227, 228, and notes: Where, in Tennessee, the allegation was, that the defendant "did feloniously and fraudulently, and without any lawful excuse, keep in his possession a machine, which said machine was then and there intended by the prisoner for the forging and counterfeiting the coin current by law and usage in the State of Tennessee, and the United Professional gambling. States, contrary, etc.; " this was held to be sufficiently specific as to the character of the coin intended to be forged and counterfeited; and, though the question was aided in the solution by a statutory provision, the indictment appears to have been deemed sufficient on common law principles. An indictment charged that the prisoner, on, etc., at, etc., feloniously had in his possession a mold, "upon which said mold was made and impressed the figure and apparent resemblance" of the obverse side of a sixpence, was held bad, on demurrer, because it did not sufficiently show that the impression was on the mold. at the time when the prisoner had it in his possession. But a fresh indictment, with the words "then and there" before the words "made and impressed," was held good. Reg. v. Richmond, 1 Car. & K. 2401; Cox. C. C. 9. In Illinois, an indictment alleged, that the defendant had in his possession, knowingly, and without lawful excuse, certain instruments and tools used in counterfeiting the current coin of the state. This was held to be sufficiently descriptive of the offense, and in conformity with the statutory definition of the crime. Miller v. People, 2 Scam. 233. In North Carolina, an indictment, charging a defendant with having in his possession one pair of dies, upon which were made the likeness, etc., of a lawful Spanish milled silver dollar, etc., for the purpose of making and counterfeiting money in the likeness of Spanish milled silver dollars, was held to charge with sufficient certainty the offense designated in the act of 1811. The State v. Collins, 3 Hawks, 191. In Virginia, a statute made it punishable "if any person or persons shall, without lawful authority, and without lawful excuse, knowingly have in his, her, or their custody any such plate or instrument, etc. ;" and an indictment was held to be sufficient which charged that the prisoner "did knowingly have in his custody, without lawful authority or excuse, one die or instrument, for the purpose of producing and impressing the stamp and similitude of the current silver coin, called a half dollar." No further description of the instrument was deemed to be necessary. Commonwealth v. Scott, 1 Rob. Va. 695. Where a statute, in Ohio, made it indictable if any person "shall knowingly have in his possession and secretly keep any instrument for the purpose of counterfeiting any of the coin, etc.," an indictment following merely the words of the statute as to the scienter, |