Cheek v. The Commonwealth

• Decision Date: 29 March 1881
• Citation: 79 Ky. 359
• Parties: Cheek v. The Commonwealth.
• Court: Kentucky Court of Appeals

79 Ky. 359

Cheek v. The Commonwealth.

Court of Appeals of Kentucky.

March 29, 1881.

APPEAL FROM FAYETTE CIRCUIT COURT.

HUSTON & WEBSTER FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, AND C. J. BRONSTON, COMMONWEALTH'S ATTORNEY, FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellant was indicted for the offense of "keeping a disorderly house," the specification being that he, for gain, habitually sold pools upon horse-races, and habitually procured idle and evil-disposed persons to come to his house to buy pools, and to bet upon horse-races, to the common nuisance and annoyance of all good citizens. The evidence established that appellant sold pools upon races to be run in Kentucky and elsewhere, for which he received a commission in no way dependent upon the result of the race, and that there was no disorder or disturbance of any kind.

The court instructed the jury as follows:

"If the jury believe from the evidence, beyond a reasonable doubt, that defendant, in this county, and within twelve months before the finding of the indictment herein, did suffer and permit divers persons to habitually assemble in a house in the city of Lexington, and on Main street thereof, commonly called the `Merchants,' in the occupation and under the control of defendant, and there engage in betting, winning, and losing money upon horse-races they should find the defendant guilty, and fix his punishment at fine or imprisonment, either or both, in their discretion; otherwise, they should find the defendant not guilty."

The jury having found appellant guilty, and fixed his fine at two hundred dollars, judgment was entered accordingly, from which this appeal is taken.

The sole inquiry is, whether the simple act of selling pools in a house under the control of the person selling is punishable under an indictment for "keeping a disorderly house." A determination of that question involves the inquiry, first, is the act complained of punishable by statute? second, is it an offense at common law?

The statute denounces a penalty against one for betting at "any game or wager," for inviting or inducing another to visit a place where "gaming" is carried on, and for setting up or keeping any "faro-bank, gaming table, machine or contrivance used in betting or other game of chance."

Appellant could not be convicted under an indictment for the statutory offense of betting at a "game or wager," first, because he did not bet or wager anything; and second, because betting on a...