have been performed on Saturday, and the defendant, by his neglect, created the necessity for the work on Sunday, then he would not be excused; for the law requires that men should make all reasonable preparation for Sunday so as to avoid the necessity of labor on that day. To create a legal necessity the work must have been such as could not reasonably have been done on a previous week day, or be reasonably postponed until a future day. If it was not proper for the defendant to feed his hogs on Saturday enough to last them over Sunday, and thereby materially lessened the labor to be performed on Sunday, it was his duty to do so; and if he neglected such needful preparation and gathered and hauled the corn on Sunday, the work of gathering and hauling the corn on Sunday would not be a work of necessity, although feeding it to his hogs would be." We do not think this instruction is the true interpretation of the law. It directly states to the jury what labor would not be a work of necessity. This is a question of fact for the jury to decide and not a question of law for the court to declare. Whether a work is a work of necessity or not must necessarily depend upon the facts in each case. Sometimes a similar state of facts would be a work of necessity, and sometimes not; the question therefore can not be reduced to a proposition of law which is uniform and applicable to all cases alike. The principle was properly expressed by Howk, J., in the case of Wilkinson v. State,1 namely: "Labor performed on Sunday which is necessary under any particular state of circumstances for the accomplishment of a lawful purpose, is not a violation of the Sunday law," to which we may add in this case, that whenever labor is lawful and necessary to be done, then the usual and proper means by which it is done will also be necessary and lawful. It can not be doubted as matter of fact that to feed hogs on Sunday is a lawful and necessary work; now, if according to the circumstances, the usual and proper means to feed them according to the practice of good husbandry, was to gather the corn daily, and haul it to the pen and give it to the hogs, then gathering and hauling the corn and feeding the hogs on Sunday would not be unlawful; and whether such a method of feeding hogs on Sunday is a work of necessity or not must, in each case, be left to the jury to decide as a question of fact."

We can not see anything in this evidence out of the ordinary way in feeding hogs, in the fall of the year, before the corn is ripe enough to crib, as practiced generally in the State of Indiana by good husbandmen. The work of feeding the hogs on Sunday being lawful and necessary, the manner of feeding them taking into the view the time of year, the condition of the corn, the place where the corn was, and where the hogs were also become lawful and necessary; and the work thus being lawful and necessary, it was lawful and necessary to feed them on Sunday in the same manner that would be necessary and proper, according to the circumstances, to feed them on a week day. The evidence is so clearly insufficient that we can not approve the verdict. A work of necessity within the meaning of the statute, does not mean a physical or absolute neces sity; but a moral fitness or propriety in the work done, under the circumstances of each particular case, may be deemed a work of necessity, within the meaning of the law. Nor need the necessity be dangerous to life, health or property, which is beyond human foresight or control. On the contrary, the necessity may grow of, or be incident to a particular trade or calling, and yet be a work

1 59 Ind. 416; 26 Am. Rep. 84.

of necessity within the meaning of the act. It is not the design of the law to impose onerous restrictions upon, or add burdens to any lawful trade or business. It has been held that keeping up a blast furnace, running a mill, manufacturing gas, supplying water by water-works, furnishing milk by dairy-men, gathering and boiling sugar-water, making malt beer, taking watermelons to market, according to the circumstances of each case, are works of necessity within the meaning of the law; and we think that hauling the corn and feeding hogs on Sunday, under the circumstances of this case, fall within the same principle. See the case above cited; also Morris v. State, and the cases there cited and Crocket v. State.2 So strict a construction of the act as that held by the court below might authorize the arrest of superintendents, engineers, firemen, conductors, and brakemen, while operating railroads, laborers in depots and stockyards, herdsmen and feeders of cattle, "engaged in their usual avocations" on Sunday and thus embarrass, if not entirely stop the great commercial interests and leading industries of the State, a result certainly not intended by the Legislature that enacted the law. The judgment is reversed and the cause remanded with instructions to sustain the motion for a new trial, and for further proceedings, according to this opinion.

§ 289. "Common Labor and Usual Avocation." - These words refer to such acts of labor or business as may be lawfully performed on week days. Therefore gaming is not within them.3

§ 290. Keeping “Open Store.”—A statute prohibiting the keeping of open store on Sunday means open store for the purpose of traffic, and the simple fact that the door of the store was open is not sufficient on which to convict.1

§ 291. Nuisance-Nuisance must do Public Injury. — This is well settled." In R. v. Lloyd, the defendant was indicted for a nuisance by the society of Clifford's Inn. The defendant was a tinman. The nuisance complained of by the indictment was, that from the noise made by him in the carrying on his trade, the prosecutors were disturbed in the occupation of their chambers, and prevented from following their lawful professions. It was proved by the prosecutors, who were attorneys, that in carrying on such part of their business as required particular attention, in perusing abstracts, and other necessary parts of their profession, the noise was so considerable, that they were prevented from attending to it. It appeared, however, on the cross-examination of the witnesses on the part of the prosecution, that the noise only affected the numbers, viz.: 14, 15, and 16 of Clifford's Inn, and that by shutting the windows the noise was in a great measure prevented.

Lord ELLENBOROUGH said that upon this evidence the indictment could not be sustained; and that it was, if any thing, a private nuisance. It was confined to the inhabitants of three numbers of Clifford's Inn only; it did not even extend to the rest of the society, and could be avoided by shutting the windows; it was therefore not of sufficient penal extent to support an indictment; and he thought this indictment had been already carried on far enough.

1 31 Ind. 189.

2 33 Id. 416.

3 State v. Conger, 14 Ind. 396 (1860).

4 Snider v. State, 59 Ala. 65 (1877).

The defendant was acquitted.

6 Commonwealth v. Weber, 6 Rand. (Va.) 726 (1828.)

4 Esp. 200 (1803).

mon law. The statute,1 has not been enacted in this State, but if it had, the indictment is not founded upon any statute, and we are only to inquire how the matter stood at common law. Keeping a gaming table for one's profit, was made penal by the English statute, and a penalty of 40s imposed. This shows that such an act was not, in itself, criminal at the common law. Something more must be shown. No disorderly conduct is in this instance proved against the defendant. He allowed no noises which disturbed the neighborhood, and no betting, but discountenanced the most trifling wagers. The only fact upon which the indictment can rest, is the loser of the rub paying for the use of the table. A house kept even for games of chance, conducted for mere recreation, is not criminal at common law. Such is not a gaming house within the common law of nuisance.2 Billiards is a game of skill; and, of course, is further without the law. It may be ruinous if the parties bet, but a billiard house where no betting is allowed, and where there is no disturbance, can not be a nuisance, unless it be a tavern, where, by statute, the mere keeping of a table is made so. Paying for the table by the rub is not gaming within the meaning of the law, which makes the house a nuisance. Here is hardly a shadow of gain by either party. Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity. Experience having shown that this leads to idleness and waste, riot and intemperance, the common law has wisely pronounced it pernicious, and condemned the gambling house as a common nuisance. The case before us does not come within the principle, and we are of the opinion that the indictment is not sustained by the proof." § 228. - Betting on Election. Betting on an election is not gaming.1

§ 229.

- Lottery Ticket. A resale of a lottery ticket by the purchaser, is not within the Alabama statute.5

§ 229a. Lottery - Chances Must be Sold or Prizes Given. — In Buckalew v. State, the defendant was convicted of setting up and carrying on a lottery. The evidence was that "the defendant had a mill and in the mill house on the head of a flour barrel, he had what the witness called a board on which were marked in a circle, figures from one to forty-eight, with a heart in the center, fastened on a pivot or hand pointing to the numbers, and could be made to rotate or turn; that parties were in the habit of putting down money, each putting down the same amount, and then each would whirl the heart, and the one on whose whirl the finger or hand on the heart stopped pointing to the highest number won all the money; that the defendant sometimes put down money as one of the players and that for the last few days that the same was played on, the defendant charged a nickel for the use of the board, to be paid by the one winning." The court charged that if the jury believed this the defendant was guilty.

1 33 Henry VIII., ch. 9, sec. 11.

2 Williams, J., Gambling and Gaming Houses, Bac. Abr., Gaming (A.)

31 Hawk. P. C., ch. 75, sec. 6; 10 Mod. 336. 4 State v. Henderson, 47 Ind. 127. See fur

ther on this, ante, Ch. II. Elections.

5 Solomon v. State, 28 Ala. 83 (1856). Purchase of tickets not indictable in North Carolina. State v. Bryant, 74 N. C. 207 (1876). 2 DEFENCES.

48

As to distribution of works of art among subscribers to Art Union, see People v. American Art Union, 7 N. Y. 240 (1852). As to the offense under the Connecticut statute of publishing proposals to sell or procure lottery tickets, see State v. Sykes, 28 Conn. 225 (1859).

6 62 Ala. 334 (1878).

STONE, J. Lottery is a distribution of prizes by lot or chance. There are said to be two kinds of lottery in general use. One, the Genoese, or numerical system; sometimes called the combination plan. The other the Dutch or class lottery; sometimes called the single number plan.2 In each chances are purchased, generally by the purchase of tickets or fractions of a ticket. Not necessary, however, that tickets should be issued. Wherever chances are sold and the distribution of prizes determined by lot, this it would seem, is a lottery. This we think is the proper acceptation of the term. We judicially know what constitutes a lottery. According to the testimony in the present record, it can not, with any propriety, be said that chances were sold or prizes won or drawn. In fact, nothing was sold. The entire theory of the game was, that several or many persons contributed equal sums to a common purse, which was awarded to the contributor whom chances so favored as to register for him the highest number. In its result it resembles what is known in horse-race parlance as sweep-stakes; or a raffle, determined by a fall of dice. We do not think the proof established a case of lottery, or sustained the indictment. [Omitting other considerations.] Reversed, but not remanded. Let the defendant be discharged.

§ 230. Meaning of "Bets."—A party who furnishes money to set up a faro bank, and receives a part of the money, does not "bet" on the bank within the statute.5

§ 231.

"Common Gaming House”. Occasional Entertainment Not. One who entertains strangers occasionally on the occasion of races in the vicinity, and who then permits card playing for money is not guilty of keeping a "common gaming house."6

§ 231a. Keeping Gaming Table. A statute prohibiting the keeping of a faro bank or other common gaming table," does not authorize an indictment for keeping a common gaming table called a sweath-cloth, for a single day, on the race ground, during the races. The word "keeping" implies a repetition or succession of similar acts.7

§ 232. "Common Gaming House."— A billiard saloon where parties play for amusement, the loser paying the charge for the use of the table, is not within these words.8 "The manifest design of the enactment," said WALKER, C. J., in this case, "was to prevent the coming of persons together for the purpose of gaming for profit. It was not to prevent persons from playing games simply for amusement, when there was nothing lost; nothing lost or won. Such a construction, we think, would not be according to the evident intention of the Legislature. The act was intended to suppress and prevent the vice of gambling, and not the suppression of playing games alone for amusement. In this case we can see nothing more than simply keeping billiard tables for amusement and exercise of persons desiring to use them for that purpose. It does not appear that they were kept for the purpose of gaming for money.

1 Web. Dict.; Bouv. Law Dict. American Cyclopædia.

8 Solomon v. State, 28 Ala. 83.

4 Code of 1876, sec. 4445.

5 O'Blennis v. State, 12 Mo. 311 (1848). State v. Mathews, 2 Dev. & B. 424 (1837.)

7 U. S. v. Smith, 4 Cranch, C. C. 659.

8 Harbaugh v. People, 40 Ill. 29 4 (1866).

importance and novelty of the subject to which it relates, is here given. The jury acquitted the prisoner on both charges. STEPHEN, J. "One of the cases to be brought before you is so singular in its character, and involves a legal question of so much novelty and of such general interest, that I propose to state at some length what I believe to be the law upon the matter. I have given it all the consideration I could, and I am permitted to say that although I alone am responsible for what I am about to say to you, Lord Justice FRY takes the same view of the subject as I do, and for the same reasons. William Price is charged with a misdemeanor under the following circumstances: He had in his house a child five months old of which he is said to have been the father. The child died, and Price, as it seems, did not register its death. The coroner accordingly gave him notice on Saturday, the 12th of January, 1884, that unless he sent a medical certificate of the cause of the child's death, he (the coroner) would hold an inquest on the body on the following Monday. Price, on the Monday afternoon took the body of the child to a field of his own, some distance from the town of Llantrissant, put it into a ten-gallon cask of petroleum and set the petroleum on fire. A crowd collected, the body of the child, which was burning, was covered with earth, and the flames were extinguished, and Price was brought before the magistrates and committed for trial. He will be indicted before you on a charge which in different forms imputes to him as criminal two parts of what he is said to have done - namely, first, his having prevented the holding of an inquest on the body; and secondly, his having attempted to burn the child's body. With respect to the prevention of the inquest, the law is that it is a misdemeanor to prevent the holding of an inquest which ought to be held, by disposing of the body. It is essential to this offense that the inquest which it is proposed to hold is one which ought to be held. The coroner has not an absolute right to hold inquests in every case in which he chooses to do so. It would be intolerable if he had power to intrude without adequate cause upon the privacy of a family in distress and to interfere with their arrangements for a funeral. Nothing can justify such interference except a reasonable suspicion that there may have been something peculiar in the death that it may have been due to other causes than common illness. In such cases the coroner not only may, but ought, to hold an inquest, and to prevent him from doing so by disposing of the body in any way - for an inquest must be held on the view of the body is a misdemeanor. The depositions in the present case do not very clearly show why the coroner considered an inquest necessary. If you think that the conduct of Price was such as to give the coroner fair grounds for holding one, you ought to find a true bill, for beyond all question Price did as much as in him lay to dispose of the body in such a manner as to make an inquest impossible.

"The other fact charged as criminal is the attempt made by Price to burn the child's body, and this raises, in a form which makes it my duty to direct you upon it, a question which has been several times discussed, and has attracted some public attention, though so far as I know no legal decision upon it has ever been given, the question, namely, whether it is a misdemeanor at common law to burn a dead body instead of burying it.

"As there is no direct authority upon this question I have found it necessary to examine several branches of the law which bear upon it more or less remotely. The practice of burning dead bodies prevailed to a considerable extent under the Romans as it does to this day amongst the Hindoos, though it is said that the practice of burial is both older and more general. Burning