State v. Fearson

Mason, J., delivered the opinion of the court. The indictment in this case alleges, that the defendant, John Fearson, “on the sabbath day, he being a licensed tavern-keeper, did suffer divers persons, to wit: Joseph B. Harbin, Thomas C. War'd and Henry B. Shannon to play at a game with cards, and bet upon games of hazzard upon cards, and win and loose money upon the same in the tavern of him the said John Fearson,” See. To this indictment the defendant demurred, and the circuit court sustained the demurrer, whereüpon the plaintiff appealed to this court. The effect of the demurrer was to admit the facts as stated in the indictment, and we are now called upon to decide whether such a state of facts constitutes an offence under our laws. After an attentive examination of our acts of Assembly we find, that the only one which could embrace the present case is the act of 1723, ch. 16; sec. 11. That section provides, “that no house-keeper shall sell any strong liquer on Sunday, or suffer any drunkenness, gaming or unlawful sports or recreations in his or her house.” • A tavern-keeper is clearly a house-keeper in contemplation of the act of Assembly, and the only remaining inquiry is, does the present alleged offence- come within any of those enumerated in the law?’ If so it must be classed under the head of gaming. In the connection in which this term is employed we- must regard it as synonymous with betting on games. It cannot be supposed' to mean unlawful games, which is the- usual signification given to the term, for such would be violations of the law, whether practiced on Sunday or any other day of the week; or if they were not, the policy of this law would prohibit such practices alike on every day of the week as-well as on' Sunday, and therefore we cannot [313] suppose that the legislature designed to give such a construction to the word gaming. We are to regard the act as designing to make that unlawful on a Sunday which would be deemed in law as innocent on any other day of the week. The title of the law indicates, that it is an act to punish sabbalk-breakers. The defendant admits, that he suffered betting on cards, (which we have construed to mean gaming,) in his house on Sunday. To “suffer gaming on Sunday,” is the offence provided for by the act of Assembly, and we think the defendant has been brought within its purview, for the reasons already given. Independent of any statutory prohibition, this is a gross offence against decency and public morals, and therefore richly merits punishment. Judgment reversed and procedendo awarded.