Commonwealth v. Tilton

Shaw, C. J The defendant was acquitted by the jury of the [233] charge in the first count in the indictment, and by leave of the court he pleaded a nolo contendere to the second count. This plea, like a demurrer, admits, for the purposes of the case, all the facts which are well stated, but is not to be used as an admission elsewhere ; and upon a motion in arrest of judgment, the only question is, whether the count sets forth any indictable offence. This indictment was framed on the Rev. Sts. c. 47, >§> 9, which is in these words : “ No innholder or common victualler shall have or keep in or about his house, or other buildings, yards and gardens, or dependencies, any dice, cards, bowls, billiards, quoits, or other implements used in gaming ; nor shall suffer any person resorting thither to use or exercise any of said games, or any other unlawful game or sport, within his said premises, on pain of forfeiting ten dollars for every such offence.” The leading averments in this count in the indictment are, that the defendant was a licensed innholder, and occupied his house in that capacity ; that he did have in his said licensed house certain game cocks, “ being implements used in gaming,” and did then and there suffer certain persons (naming them) to use and exercise, within his house so licensed, the game of cock-fighting. It is argued, that game cocks, in the sense in which the term “ implements ” is here used, cannot be regarded as implements used in gaming. If this be so, of which we now give no opinion, it is not decisive of the question. We think it was the purpose of the statute, to prohibit and punish several different disorders in public licensed houses; to prevent the abuse of them, and the more effectually to secure the useful purposes for which they are allowed. The first clause in this section designs to prohibit the abuse of licensed houses, by prohibiting them from being used as gaming houses, places where games of hazard are practised, and money or other property staked on them. Perhaps it is a reasonable construction, that the word “ gaming,” as used in connection with “ implements,” in this clause of the statute, means games of chance practised for betting. But in the latter part of the section, the word “ game,” used synony mously with “ sport,” and its use or exercise prohibited in [234] a licensed house, is used in a more enlarged sense, including exercises, practices and exhibitions, resorted to as means of amusement, to display strength or skill, or gratify a love of pleasure, or fondness for excitement. These, if unlawful, are calculated to draw together numbers of disorderly persons, to prevent the repose of guests, and interrupt the peace of the community. The question then recurs, whether the game of cock-fighting is an unlawful game or sport, when practised at a licensed tavern. That the statute intended to prohibit something besides the games specifically enumerated, is manifest from the use of the words, “ other unlawful game or sport,” which would have else been utterly useless. As this statute has not defined, nor with any particularity described, what is intended by “ unlawful game or sport,” we must resort, for information, to other statutes, and to the principles of the common law. In the case of Commonwealth v. Goding, 3 Met. 130, we had occasion to hold, that the game of bowls, under the particulai circumstances stated in that indictment, was an unlawful game, because it was enumerated, in another analogous statute, amongst prohibited games. See also Tanner v. Trustees of Albion, 5 Hill, 121. And we are of opinion, that the game or sport of cock-fighting is unlawful, because it is a violation alike of the prohibitions of a statute, and of the plain dictates of the law of humanity, which is at the basis of the common law, and specially recognized in the constitution, which makes, it the duty of the legislature “ to countenance and inculcate the principles of humanity.” Const, of Mass. c. 5 ■§. 2. The Rev. Sts. c. 130, <§> 22, have prohibited cruelty to animals, under penalty of fine and imprisonment. But we think it is prohibited by the principles of the common law, as a cruel and barbarous sport. Lord Ellenborough says, in Squires v. Whisken, 3 Campb. 141, that “ cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice.” See also Rex v. Howel, 3 Keb. 510. As being barbarous and cruel, leading to disorder and danger, and tending to deaden the feelings of humanity, both in those who partici [235] pate in it, and those who witness it, it appears to us to stand on the same footing with bull-fighting, bear-baiting, and prizefighting with fists or dangerous weapons, all of which, we think, would be considered as unlawful games or sports. We are strongly inclined to the opinion, that a place, opened as a place of public or general resort for these purposes, especially for hire, would be held a nuisance at common law; and it seems not the less unlawful, when practised at a place authorized by law for all persons to resort to, for their lawful purposes, and where all lawful guests have a right to the enjoyment of rest. The court are therefore of opinion, that an offence punishable by law is set forth in this count, and that the conviction was right. Exceptions overruled