Commonwealth v. West

31 Ky. 165, 1 Dana 165, 1833 Ky. LEXIS 42

• Court: Court of Appeals of Kentucky
• Decided: April 22, 1833
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

The case of West vs. The Commonwealth, (3 J. J. Mar. 641,) must be decisive of this case.

In that case, a judgment by default, on a scire facias upon a recognisance “for gaming,” was reversed, because “ gaming,” as described in the scire facias, was not an indictable offence.

In this case, the scire facias describes the recognisance as requiring an appearance to answer “ an indictment for gaming, by setting up and keeping a faro bank, upon which money was bet and won and lost.”

The charge, as thus described, would be indictable. But West having craved oyer of the recognisance, and demurred, a material variance between the scire facias and the recognisance, is disclosed. The latter requires an appearance to answer a charge of “ gaming” simply. As, therefore, “gaming” is not, of itself and alone, an indictable offence, the recognisance cannot be the foundation of a judgment, and, therefore, according to the principle decided in 3 J. J. Mar. (supra,) the demurrer to the scire jfacias ivas properly sustained.

Judgment affirmed.