State v. Lenares

Voorhies, J. This appeal is brought up by the defendant, who was convicted of the offence of keeping a banking game, and sentenced to pay a fine of $1000, and the costs of'prosecution. He complains that the Judge charged the jury on the facts of the case. The Judge, charged “that the game of ‘keno’ was abanking game, according to the decision in the case of the City v. Miller, 7 A. 651.” That the court and jury must be governed by the interpretation and definition given to the-statute upon the game of “keno” being a banking game by that decision. The statute on which the indictment was framed declares: “Whoever shall keep a banking game, or banking house, at which money, or anything representing money, or any article of value, shall be bet or hazarded, or shall aid or assist in keeping one, shall, on conviction,” &c. The indictment in this case charges that the defendant “didkeep, carry on and play a certain banking game called keno, at which money was bet and hazarded.” Whether the game of keno is a banking game or not is a mixed question of law and fact. The Judge has the-right to assume in his instructions to the-jury a hypothetical state of facts, and say to the jury, if they believe such a state of facts to be proved, that it amounts to a banking game. But the jury are the sole judges of the fact, and, under the instruction of. the court, they have the right to say whether the game played is a violation of the statute or-not. It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and the case, be remanded for a new trial according to-law.