Commonwealth v. Stowell

Dewey, J. The case of Commonwealth v. Goding, 3 Met. 130, is a decisive authority to show that the game of howls is an unlawful game, within the provisions of the Rev. Sts. c. 50, § 17. The next question raised is, whether it be competent to charge the defendant for two distinct offences, under that statute. If the offence charged was the keeping, in his dwelling-house, of tables for the purpose of playing at billiards — which is the offence first described in this section — the argument that this was one continuing offence, and not susceptible of a division, or properly chargeable as distinct offences, would deserve consideration. But the case before us does not present that question. The statute provides that, “ if any person, not licensed as an innholder, victualler, or retailer of spiritous liquors, shall keep, or suffer to be kept, in any house, building, yard, garden or dependency thereof, by him actually used or occupied, any tables for the purpose of playing at billiards, for hire, gain or reward, or shall, for hire, gain or reward, suffer any person to resort to the same for the purpose of playing at billiards, or any other unlawful game, every person so offending shall, for every such offence, forfeit,” &c. It is this latter offence, and not the act of keeping a house or place for playing at billiards, &c., which is the subject of the present indictment. The offence here charged is not a continuing offence. It consists in permitting persons, for hire and reward, to resort to a building used by the defendant, for the purpose, on their part, of playing at bowls. This offence may be repeated from day to day, and in connexion with different individuals, and of course may be the subject of distinct indictments, or distinct counts in the same indictment. Such being the nature of the offence, it is properly charged on a single day certain, and not on divers days and times. It is then objected to the sufficiency of this indictment, that it does not allege that the persons, who resorted to the building used by the defendant, actually played there at the [576] game of bowls. But the statute offence is complete, if they were permitted by the defendant to resort to a building by him used for the purpose of playing at bowls. The indictment is, we think, sufficient in this respect. It is further objected to the indictment, that it does not allege that any persons resorted to the building of the defendant for the purpose of playing at bowls. This objection arises upon the collocation of the words “ for the purpose of playing at bowls.” These words, alleging the purpose, &c., are supposed by the counsel for the defendant to be solely ap plicable to the building, and introduced to define the character of the house, and not the purpose for which the visitors resorted to the house. This, as it seems to us, is an erroneous reading of the indictment. The allegation of “the purpose of playing at bowls ” seems more directly to be applied to the persons who resorted to the house. The allegation is, that the building was actually used and occupied by the defendant, and that, while it was thus occupied and used, he, for hire and reward, permitted certain persons to resort thereto for the purpose of playing at bowls. The language is reasonably certain and brings the case within the statute. A new trial is also moved for, on the ground of certain alleged improper proceedings in the empannelling of the jury for the trial of the cause. Under the impression that any one of the panel, who might be an inhabitant of Springfield, would be incompetent to serve as a juror in this case, the district attorney suggested that it might be proper that Chester B. Chappell should withdraw from the jury. This was assented to by the presiding judge, and no objection was taken by the defendant. The ground now taken is, that Chappell was competent, under the provisions of the Rev. Sts. c. 95, § 28, and ought therefore to have been retained on the jury. Supposing such to be the fact, yet we perceive no ground for a new trial for this cause. The defendant was conusant of the withdrawing of the juror, and made no objections to it. If he would avail himself of the right to the service of any person as a iuror, or rely upon an objection to an individual being [577] ■ placed on the jury for the trial of his cause, he must take the objection, if he has an opportunity so to do, before the case proceeds to trial and a verdict is rendered. This opportunity he fully had in the present case, and by not presenting his objection, he waived all right to take it after verdict. Without considering how far it is competent for the presiding judge to interpose in the arrangement of the panel of jurors, and to excuse any member thereof from serving, we are all clearly of opinion that the acquiescence of the defendant in the proceedings in the present case estops him from raising any objection on this ground. Rev. Sts. c. 95, § 30. Fox v. Hazelton, 10 Pick. 278. Exceptions overruled.