State v. Terry, 20 N.C. 185, 3 Dev. & Bat. 185 (1839)

June 1839 · Supreme Court of North Carolina

20 N.C. 185, 3 Dev. & Bat. 185

THE STATE vs. ARMSTED TERRY, JOEL VANNOY et al.

June, 1839.

The playing at cards for money or property, in a counting room attached to, and under the same roof with, a store room iii which spirituous liquors are retailed, falls within the proM8¥S85?SP!fFff?S|irf 183Í, ch. 26, (1 Rey. Stat. ch. 34, sec. 69,) game of cards in any house, where spi: out house or store attached thereto, oi pied with such house.”

In an indictment under the aboye mentii that the spirituous liquors were in fac" the playing took place; and it is no defei retailer has not pursued the directions of the taining a license to retail. uffioient Jo shew ousejh which that the Assembly in ob-

The defendants were tried at Wilkes, on the spring cuit of 1838, before his honor Judge Bailey, upon an dictment for gaming in a house wherein spirituous liquors were retailed, contrary to the act of 1831, ch. 26, [see 1 Rev. Stat. ch. 34, sec. 69,] when the Jury returned a special verdict in the words following, to wit: “ That the defendants, Joel Vannoy, Armsted Terry and Thomas F. Lowery did play at cards, for ahorse, in a room belonging to the said Joel Van-noy, which said room and a store room in said house, the said Vannoy had theretofore rented from one Benjamin W, Caás; in which said store room the said Vannoy, at the time ^ Paying the cards aforesaid, retailed spirituous liquors without a license authorising him so to do: And they further ® •* find that the County Court of Wilkes, before the playing aforesaid, had made an order and within twelve months, that a license should issue to the said Vannoy to retail in said store house; and further, that it did not appear from the record aforesaid, that the said order granting a license was made by seven justices then in court; and they find further, that 'the room in which the cards were played was a counting room.”

Upon this verdict, a motion was made to arrest the judgment, which was sustained by the court, and the solicitor lor the State appealed.

Daniel, Judge.

The defendants are indicted for offending against the following act of Assembly: “ Every person who shall play at any game of cards, in any public house or .tavern, or house where spirituous liquors are retailed-, or any out house or store attached thereto, or any part of the premises occupied with such house, and bet money or property, shall be deemed guilty of a misdemeanor.” 1 Rev. Stat. ch. 34, sec. 69. The jury, in a special verdict, find that Vannoy, ■one of the defendants, was owner of a store room and counting room in one house. He retailed spirits in the store room, and the defendants gamed at cards, and for property, in the counting room. The store and counting rooms, in our opinion, constituted parts of but one establishment. The counting room was a part of the premises occupied with the store by the retailer; and the playing of cards in that room, brought the defendants within the act of Assembly.

The second question arising out of the verdict is, whether the owner was a retailer of spirituous liquors within the meaning oí the said act of Assembly. We are of opinion, that the circumstance of Vannoy’snot having complied with all the requisites, of the law in obtaining his license to retail, is no excuse for the defendants. The jury have found the fact that he did retail spirits in his store room. That fact satisfies the gaming act above quoted, and the charge in the indictment that spirits were retailed in the house. The ment rendered in the Superior Court, must be reversed. This opinion will be certified, that judgment may be rendered for the State. ' ■

Per, Curiam. ' Judgment reversed.