Cheesum v. State

pBRKINSj j.

phis was an indictment charging the defendants with betting on a horserace. Plea, not guilty; trial, conviction, and assessment of a fine, by the Court.

On the trial, Benjamin C. Lowe, the person with whom the defendants are alleged in the indictment to have made the bet for which they were prosecuted, was introduced as a witness on the part of the state, and refused to testify on the ground that by so doing he would criminate himself, but the Court compelled him to give evidence in the cause.

To this ruling of the Court the defendants excepted, and assign it for error.

The decision of the Court compelling the witness to testify, was made under sect. 42, p. 993, R. S. 1843, which reads as follows: “ Any person legally called to give evidence against *333 another for gaming shall be deemed a competent witness to prove such gaming, although such person may have concerned as a party; and may be compelled to testify as in the case of other witnesses.” The ground taken by the counsel for the plaintiffs in error is, that a horserace is not a game, and that therefore the case is not embraced by the statute. In this we think they are mistaken. In the statutes and judicial decisions of England, a horserace is uniformly classed as a game; 10 Petersdorff’s Abr. 228; Blaxton v. Pye, 2 Wils. 309; and we think our legislature used the term in the same signification.

T. A. Wright and S. F. Maxwell, for the plaintiffs. A. A. Hammond and J. H. Bradley, for the state.

It is also said the evidence did not warrant a conviction. We cannot concur in that opinion.

Per Curiam.-

-The judgment is affirmed with costs.