ommend him to the mercy of the court,' and then the penalty was unusually severe. He might under the law then in force, have been imprisoned in jail not less than one nor more than six months, at the discrimination of the court, 'and be kept thereon low and course diet as prescribed by law for convicts in the penitentiary,' and in addition thereto be punished with stripes at the discretion of the court, to be inflicted at one time or at different times during such confinement, as the court may direct, provided the same do not exceed thirty-nine stripes at any one time.' Session Acts of 1822, chapter 32, section 4. Wyatt might thus have been imprisoned six months and whipped any day of his imprisonment, provided only the stripes did not exceed 'forty, less one,' at any one time. Notwithstanding this harsh penalty, and I may add without unduly criticising our ancient law givers, the penalty was cruel and inhuman-and notwith-standing the further fact that Wyatt violated the law ignorantly, yet that court, composed as it was at the time this case was heard of such men as Judges Brockenborough, Daniels, Parker, Upshur, and others, acquisced in this conviction, and gave to the statute a construction which made his conviction legal. The courts and juries of that day seem to have asked themselves but one question: "What is the law?" It is well that courts and juries of this day follow their example. We should always bear in mind that the legislature makes the laws and that it is the duty of the courts simply to construe and enforce them." There is no error in the judgment and the same is affirmed. Affirmed. BRANNON, JUDGE, (concurring): In 1828 fifteen Virginia judges, composing the General Court, construed the statute now before us. Wyatt's Case, 6 Rand. 694. As I understand the decision, that court held that the distinctive feature" in the character of the games condemned by the statute is "that the chances are unequal, all other things being equal, and those unequal chances are in favor of the exhibitor of the games, or tables;" in other words, held that if that one distinctive feature be present in the game, no matter what called or how played, though in other respects there be no inequality be-tween the parties, the game will fall under the statute. That fea- ture of inequality is present in the operation of the slot machine, and there is no other feature in it to repel or neutralize that feature, even if it could do so, that one feature being present. The court of appeals of Virginia in 1858 understood Wyatt's Case as so construing the statute, as that court held that if an indictment charged that the gaming "is of the like kind as those specified; that is, that the chances of the game are unequal, all other things being equal," it charged an offense under the statute. Iuff's Case, 14 Grat. 648. In 1879 the Virginia court of appeals regarded the two prior cases as thus settling the construction of the statute, because it said, in stating the meaning of Wyatt's Case, that "if other games resemble those standard ones in that distinctive feature, they come within the terms" of the statute. Nuckolls Case, 32 Grat. on page 895. After much consideration I conclude that those decisions settle the case before us. They bind us. I do not think that any better solution of the words "or table of like kind,” can be found. Though the slot machine plays for only a nickel, it plays for many of them, and amount is not made a test under the statute, and we cannot introduce an exception. It is true that criminal statutes are to be construed and applied strictly, but we must think of the evil against which the Legislature aimed. Its aim was to prohibit all sorts of gaming of uneven, unfair chance. It specified "A, B, C, or E O table or faro bank, or keno table," and reflecting that there were then and would in the future. come other games, it added "or tables of like kind, under any denomination, whether the game or table be played with cards, dice or otherwise." A "table" is not essential to make the game come under the law, since we see the word "game" also used. We must not give the law a construction too narrow under such broad language, and defeat plain, comprehensive intention of the Legislature. It strengthens our decision to add that the Code requires us not to construe this statute strictly as a penal statute. It says, "All laws for suppressing lotteries and unchartered banks shall be construed as remedial." Chapter 151, paragraph 16. INDEX. ACTS INVALID. 1. Chapter 8, Acts of 1891, Code 1899, page 1115, being in contra- ACTION. See Usury 7; Fire Insurance Policy 4. ADVERSE POSSESSION. See Co-Tenant 1. AGENCY. 1. Neither agents or sub-agents nor attorneys nor assistants there- See Coal Company 1. AGENT. 1. 2. 3. Mere commission or reward to be earned by an agent in exe- A written proposition to employ one as agent to sell land, signed A promise of remuneration for services to be performed makes AGREEMENT. See Office Judgment 1. AFFIDAVIT. See Tax Sale 1. AMENDED BILL. See Bill of Review 1. |