Page:Portis v. State.pdf/1

360Rh

"KENO"—A gambling device, etc.—All persons who play at the game commonly called and known as "Keno," are guilty of gambling; and the person who sets up, keeps or exhibits this apparatus, contrivance or machine, is guilty of setting up, keeping or exhibiting a gambling device, and is liable to the penalties of the statute.

MISCONDUCT OF JURY—When defendant cannot complain.—Where misconduct on the part of jurors has been of injury to a party, it is the duty of the court to set aside the verdict, but the defendant cannot complain where the act or misconduct would have been for his benefit.

Hon. I ML. B, Criminal Judge.

J. A. Williams, for Appellant.

Montgomery, Attorney General, for Appellee.

B J.—This is a conviction for exhibiting a gambling device.

The record presents three questions for adjudication. 1st. Did the indictment allege a public offense? 2d. Did the defendant exhibit a gambling device? 3d. Was there such misconduct on the part of the jury, trying the case, as to warrant the court to set aside the verdict?

Did the indictment allege a public offense?

The indictment accuses James M. Portis of the crime of exhibiting a gambling device, committed as follows, viz: "The said James M. Portis, in the county aforesaid, on or about the 3d day of January, 1871, did then and there unlawfully set up and exhibit a certain gaming bank or gambling device, adapted, devised or designed for the purpose of playing a game of chance or at which money or property may be won or lost, and property was won or lost at the time of said exhibition, which said gaming bank or gambling device aforesaid, is commonly called "keno."

This kind of a gambling bank or gambling device is not specifically named in the statute, nor is it known judicially to