Commonwealth v. Shelton
| Decision Date | 11 December 1851 |
| Citation | 49 Va. 592 |
| Court | Virginia Supreme Court |
| Parties | COMMONWEALTH v. SHELTON & others. |
Betting on a horse race is not within the meaning of the 5th section of the 10th chapter of the act of the 14th March 1848, concerning crimes and punishments, and proceedings in criminal cases.[a1]
At the October term for 1849 the grand jury for the county of Cabell presented Jerome Shelton, Ballard McComas, David Shelton Rowland Bias, Johnson Lusher and Thomas A. Childers for unlawful gaming by betting on a horse race, at a race field on the lands of Thomas McComas in the county of Cabell.
The prosecution against Bias was dismissed; and when the trial of the other defendants came on the jury found a special verdict as follows:
That some time within twelve months before the finding the presentment in this cause, a horse race was run in a field belonging to Thomas McComas, in the county of Cabell, for twenty or twenty-two dollars; that one of the horses belonged to one Ray and the other to a man named Hodge: That the agreement to run the race and the amount for which it was to be run, was agreed upon at the house of Andrew McComas, about a mile distant from the place where the race was run, and on the opposite side of the river. That David Shelton made the agreement for the bet, and was interested in the race one fifth of the amount of the bet for which it was run.
That about a month previous to the time of running the race above referred to, a like race was run at the same place, for the sum of 50 dollars, in which the defendant Ballard McComas agreed to become interested to the extent of one third of the bet: This bet was also made at the house of Andrew McComas.
That at another time a third horse race was run at the same place, by the defendants Thomas Childers and Johnson Lusher, for the sum of one dollar, which bet was also made at the house of Andrew McComas. That these bets were all made and the races run within a year before the finding of the presentment in this case. That all the defendants were on the ground at the time when the several races were run. There was a verdict in favour of Jerome Shelton; and as to the other defendants the question was submitted to the Court upon the special verdict.
With the consent of the defendants the Circuit court adjourned to this Court the following questions:
1st. Is betting on a horse race gaming within the meaning of the 5th section of the 10th chapter of the act of 1848, passed March 14th, 1848, entitled an act to reduce into one the several acts concerning crimes and punishments and proceedings in criminal cases?
2d. If not included in the 5th section, is betting upon a horse race included within the meaning of the 6th section of the 10th chapter of said act?
3d. If betting upon a horse race be indictable upon either of said sections, is a person interested in said race to a less amount than 20 dollars, where such bet exceeds that sum guilty of unlawful gaming or wagering.
4th. Where the presentment charges, as in this case, that the betting took place at the race field, is the presentment sustained by proof of a betting at another and different place?
5th. If the case set out in the presentment be unlawful gaming as aforesaid, is proof that one of the defendants agreed to become interested, without proof that he staked any money sufficient to sustain the presentment on that point?
6th. What judgment ought the Court to render in the premises?
The presentment charges that the defendants " on the 1st of August 1849, at a race field on the lands of Thomas McComas in the said county of Cabell, unlawfully did game by betting on a horse race then and there run over the paths in said race field, contrary to the form of the statute" & c.
The 5th section of the 10th chapter of the act passed 14th March 1848, entitled an act to reduce into one the several acts concerning crimes & c. enacts as follows: " Any free person who at any ordinary, race field or public place, shall play at any game whatever, except bowls & c., or bet on the hands or sides of others who do play, shall be punished by fine of 30 dollars, and give security" & c.
The first question in the case adjourned submits to this Court the consideration whether " is betting on a horse race gaming within the meaning of the section which has just been quoted." And the answer to it must depend on this, whether a horse race is a playing at a game, so that betting upon the race is a betting on the hands or sides of others who do play.
In the construction of the English statute 9 Ann, ch. 14, for preventing of excessive and deceitful gaming, it was held by the Courts in England, that the word games used in that act comprehended horse races. That statute was understood, as it would seem, to comprehend the games embraced by the preceding statute of 16 Car. 2, ch. 7, which was entitled an act against deceitful, disorderly and excessive gaming. And in this statute horse races are expressly mentioned; and persons winning by fraud, or cheating at " cards, dice, tables tennis, bowls, kittles, shovel board, cock fightings, horse races, dog matches, foot races, and all other games and pastimes," were to forfeit treble the sum or value of money so won. When therefore the statute of Ann spoke of playing or betting, it was considered that it had relation to games or plays in former statutes against gaming; that foot races and horse races and the like, had been expressly mentioned as games in the statute of Charles, and that the two statutes were to be taken together. Lynall v. Longbotham, 2 Wils. R. 36; Bloxton v. Pye, 2 Wils. R. 309. The first statute in Virginia relating to gaming was passed in February 1727. 4 Hen. Stat. 214. This statute was mainly a transcript of 9 Ann, ch. 14, above referred to. There was, however, for...
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