v. Washburn, 3 Ired. Eq., 161; Monroe v. McIntyre, 6 Ired. Eq. 65. The same rule is applicable on a motion for an injunction on bill and answer, where the case made by the bill is one clearly entitling the complainant to the writ. Sullivan v. Moreno, 19 Fla. 200; Yonge v. McCormick, 6 Fla. 368.

That the defect in the answer arose from the haste so usual in preparation for meeting motions for injunction, does not overcome the rule applicable in cases of an omission of the defendant to answer as fully as he should have. Yonge v. McCormick, 6 Fla. 368; Moody v. Metcalf, 51 Ga. 128, 129.

Independent, however, of what has been said above, and treating the answer as fully meeting the case made by the bill, we are still unable to see that the action of the chancellor in granting the injunction can, upon the principles controlling appellate courts in such cases, be held to be against the weight of evidence," under the second section of the act of 1861, (section 20, p. 158, McClel. Dig.) Sullivan v. Moreno, 19 Fla. 200.

Upon a motion for an injunction, or for a dissolution of the same, the court does not commit itself on points or questions which may arise on the final hearing. Yonge v. McCormick, supra; Owen v. Brien, 2 Tenn. Ch. 295; Chetwood v. Brittan, 2 N. J. Eq. 438.

Under the circumstances set out by the pleadings and affidavit referred to, and without noticing the defenses of new matter alleged in the answer, which defenses cannot be considered at this stage of the cause, (Yonge v. McCormick, supra; 2 High, Inj. §§ 1472, 1481,) our conclusion as to the action of the chancellor is that there is no error in it authorizing our interposition. His action should not be disturbed by us unless an abuse of a sound discretion is shown. 2 High, Inj. § 1508.

The statement of McKinne's answer, that Holliday re-replevied the property, and "gave bond with Dickinson as surety thereon for the forthcoming of the property," cannot be regarded as intended to set up the condition of the bond as an estoppel against Dickenson in this suit. It does not present to us what the condition of the bond is, so that we may judge of the legal effect of its terms upon the surety. It is in fact nothing more than a statement that a forthcoming bond was given; but, if we consider it as a pleading of the condition of the bond in estoppel, it is merely an allegation of a conclusion of law.

The order appealed from is affirmed.

WOOTEN. STATE.

(Supreme Court of Florida. October 8, 1888.)

1. CONSTITUTIONAL LAW-PRESUMPTION OF INNOCENCE-GAMING.

The fourth section of "An act to suppress gambling-houses and gambling," approved June 7, 1887, which provides "that if any of the implements, devices, or apparatus commonly used in games of chance usually played in gambling-houses, or by gamblers, are found in any house, room, booth, shelter, or other place, it shall be prima facie evidence that the said house, room, or place where the same are found is kept for the purpose of gambling," is not unconstitutional. 2. SAME-VALIDITY OF STATUTE AS TO PART.

The constitutionality of the above section is not impaired by other sections of the same statute, (assuming the latter to be unconstitutional,) making it the duty of the sheriff or other police officer to seize the implements, and have them publicly destroyed in the street, in the presence of witnesses, and authorizing any sheriff, city marshal, or chief of police to enter, forcibly if necessary, and without written warrant, any house or other place in which he may have good reason to believe that gambling is being carried on, and arrest any persons violating the act. The former provision or section is entirely independent of the latter sections, and it cannot be held that the legislature would not have adopted the former without the latter. 3. SAME-WHEN CONSTITUTIONALITY OF STATUTE WILL BE CONSIDERED.

Where certain provisions of a statute are in nowise practically involved in the case under consideration, their constitutionality will not be passed on.

4. GAMING-FINDING GAMING DEVICES-PRESUMPTION.

The effect of section 4 of the statute, as set out above, is to authorize the jury to infer from the proof of the finding of such implements, devices, or apparatus that the room they were found in was kept for the purpose of gambling, where there is nothing in the attendant circumstance, or in any of the evidence in the case, raising in their minds a reasonable doubt to the contrary.

5. SAMB.

The section in question does not give to proof of such finding the further effect of prima facie proof of the actual use of the instruments as another and independent evidence that the house, room, or other place is kept for the purpose of gambling.

6. SAME-REBUTTING PRESUMPTION.

If there is nothing in the testimony of the state or of the defense to control the presumption which the statutes authorizes to be drawn by the jury from the proof of the fact of the finding, they may infer from the proof of such fact that the room or house was kept for the purpose of gambling; but, if there is any evidence whatever bearing upon the point of whether or not the implements were actually used for the purpose of gambling, the jury are to consider it, and give to it such weight as in their judgment it is naturally entitled to.

7. SAME-LAWS AGAINST Keeping GambLING-HOUSE.

The purposes of the first section of the statute, in so far as it applies to having, keeping, exercising, or maintaining a gaming-room, or a house or other place for the purpose of gaming or gambling, is to punish the person whose establishment or enterprise or business the gambling-house is, whether he operate or manage it in person or "by himself," or do so by a servant, clerk, agent, or in any other manner; and the object of the second section is to punish any one acting as the servant, clerk, agent, or employe of the former person in carrying on, or operating or managing, the house or other place for the purpose of gambling.

8. SAME-EVIDENCE-REASONABLE DOUBT.

In a prosecution under the first section, the jury must be satisfied beyond a reasonable doubt that the defendant is the person whose establishment or business the gambling-room is; but proof (should there be such) that there was an arrangement between the defendant and his agent, managing the business for him, by which, as one of the terms of his employment, the latter was to regulate or control the operation of the business in the room, and to use his own judgment as to preventing persons from playing, would not of itself defeat a conviction; and it was consequently not error to refuse to charge the jury that they must be satisfied "beyond a reasonable doubt that the defendant had the control or arrangement of the room; that is, he could regulate and control what was done there, and could have prevented the person or persons from playing, if he had seen fit to do so."

9. CRIMINAL LAW-TRIAL INSTRUCTIONS.

Where an instruction embodying both a correct and an incorrect proposition of law is requested, it is not error to refuse to give it.

10. SAME.

It is not error to refuse to give an instruction to the jury when the substance of it is contained in a charge already given them.

11. SAME-PRESUMPTION OF INNOCENCE.

It is not error to refuse to charge a jury that the legal presumption of innocence is to be regarded by the jury as a matter of evidence, where they have been charged that the law presumes every man innocent until he is proven guilty by proper legal evidence, and, if they have any reasonable doubt as to the guilt of the defendant arising from the evidence, they should acquit him.

12. SAME-APPEAL-SUFFICIENCY OF EVIDENCE.

Where the testimony is clearly sufficient to sustain the verdict, and it is evident that no injury could have been sustained by an error in an instruction given to the jury, the verdict will not be disturbed.

(Syllabus by the Court.)

Error to criminal court of record, Duval county; LOTON M. JONES, Judge. The offense with which the plaintiff in error is charged is keeping a room for the purpose of gambling.

The only testimony is that introduced by the state. It is as follows:

Ed. Williams testified that on Friday, March 2, 1888, between 10 and 11 o'clock P. M., he invaded certain premises on Newnan street, in Jacksonville,

99

Duval county, Fla. That he was instructed by the sheriff to take some men and raid what had been reported to him as a gambling-house, known as the "Atlantic Garden," situated on said street. That he went, accompanied by three others, and sent two men through the saloon, to come up the back way, while witness and another person took the front entrance. That in the mean time, as witness sent the two men through the bar-room, the party ran right in behind witness, and by the time witness got to the top of the stairs there was a commotion; in fact, witness thought the roof was coming down, "and they proceeded to come down the stairs. Witness stopped them, and went up into the room, and found some people,-probably 25 or so. Saw three tables in the room, chips upon the table, packs of cards upon one of the tables, and evidence of a game having been carried on. One party was sitting at the table, and the balance was stirred around the room. The room is on Newnan street, between Bay and Forsythe streets, and over what is known as the "Atlantic Garden." Saloon kept, witness thinks, by Mr. Zaum. Witness took possession of the tables, and they are at the jail. They are two round tables, and one in the shape of a half moon, with a drawer and a little slip, a small metal plate over a hole for slipping something down into the drawer, covered over with green cloth. The chips were not such as fly from wood when you cut it. Witness supposes they were made of celluloid or bone; something of that sort. They were red, white, and blue. These chips are generally purchased by those desiring to play at a game. He saw one man get $5 for the chips he had in his possession. There was $5.05 coming to him, so he said, but he got $5. This was the night in question. Witness did not, when he went up there, see the defendant, but he appeared on the scene about two or three moments after. The defendant, when he came into the room, asked where Lee was. He came into the room rather excited, and said, "Where's Lee?" Lee did not appear to be there. He asked the question two or three times. Witness did not know who Lee was, or where he was. Witness removed the furniture Saturday evening. Mr. Wooten was there when he moved it. Witness talked with him. "He was not there. I met him on the street, and he went up with me." This was in Duval county, state of Florida.

On cross-examination, he said that on the first table near the door there were some stacks of chips. One party sitting at the table. Two or three stacks of chips turned over, and a pack of cards on the table. Witness, in reply to the question if he considered always the presence of chips, cards, and tables as evidence of gambling, replied: "I consider it in connection with the surroundings." The circumstances and surroundings were: "A number of people around in the room, and a little knowledge I have of my own, in going around the world, would lead me to that conclusion." "Question. Then a part of your evidence is drawn from what you have seen in going around the world? Answer. Yes, sir; and what I saw there." Did not see Wooten when he (witness) went in. Saw some one pay the five dollars in the room; is sure of this. Heard him say there was five cents more coming to him. Wooten, when he came in, came up the stairway witness had entered at.

N. B. Broward testified that he was not at the room the night in question. That night Wooten asked him on what grounds he had arrested him, and wit-. ness told him as proprietor of this gambling-house. The next day he asked witness if he (Wooten) could get a few articles out of there that were not of much value, but were of value to him, saying they were worth $8 or $10, and that he would not move any of the fixtures; and witness told him, if he did not move any of the fixtures in the house, he had no objections to his moving anything that was of no consequence to witness.

Captain Floyd testified that he knew of the Atlantic Garden on Newnan street, and has been there, and that the room is used for card-playing. He has seen Wooten deal cards there. Has seen him up there. Has seen him

deal, and tell his man Mr. Lee what to do. Lee was dealing. "Question. You say you have seen him tell Mr. Lee what to do, who seemed to be in control or management of the place? Answer. Mr. Wooten seemed to be the inan." Witness has been there more than once. "Q. Since when,-how long recently, of course? A. Three weeks past."

Cross-Examination. Has seen others than Mr. Wooten deal. Has seen Lee deal. Never saw Lee give any orders. Witness has never dealt there. Never heard any one but Wooten give orders there with regard to the running of the game. “Question. In regard to running the house? Answer. Mr. Lee gave orders to the man there." Saw Wooten there first about eight or ten days ago. “Q. Didn't Mr. Wooten seem to be a player there at the time. Wasn't he a player? A. Yes, sir; he played some." Has seen others aside from Mr. Wooten and Mr. Lee deal there.

Mr. Zaum, another witness, on being asked whether a room above his place has been rented, and, if so, who made application to him to rent it recently, replied: "Yes, sir; I know very little about it. All I know is Mr. Wooten came to me, and asked me if the room was to let. He asked me if I knew him. I said, 'No, sir.' I said to him that, if he wanted to rent the rooms, the rooms were to let for family use, lodging rooms, or for office; and I did not know Mr. Wooten, so I sent him to Mr. Rebston. He said he knew Mr. Reb ston. I did not know him then, at that time. The only time that I ever seen the gentleman before in my life. Witness says he (witness) was not there when Wooten met Mr. Rebston; that "he [Wooten] went to Mr. Rebston, and dat all I know about it. I haven't seen Mr. Wooten for some time. I don't ask Mr. Rebston; Mr. Rebston don't ask me."

Cross-Examination. "Question. Has any body paid the firm any money for that room? Answer. No, not to me. Q. Do you know who has been the tenant or keeper of that room? A. That I cannot say. I goes down in the morning, and opens up, and knows nothing about business whatever." Hartridge & Young, for plaintiff in error. The Attorney General, for the State.

RANEY, J., (after stating the facts as above.) 1. This is a writ of error to the criminal court of record of Duval county. Sections 5, 24, art. 5, Const., and chapter 3737, Laws 1887. The plaintiff in error was found guilty upon an information charging that he, on the 3d day of March of the present year, in the named county, in this state, "did unlawfully have, keep, exercise, and maintain a gambling-room, situated on Newnan street, in the city of Jacksonville, for the purpose of gaming, contrary to the form of the statute in such cases made and provided;" and the sentence pronounced upon him is confinement in the county jail at hard labor for the term of three months.

The first section of "An act to suppress gambling-houses and gambling,” approved June 7, 1887, (chapter 3764,) provides: "If any person, by himself or herself, servant, clerk, agent, or in any other manner, shall have, keep, exercise, or maintain a gambling table or room, or gaming implements or apparatus, or house, booth, tent, shelter, or other place, for the purpose of gaming or gambling, * * he, she, or they, so offending, shall, on conviction, be imprisoned in the county jail not less than three months, nor more than one year, or be imprisoned in the state prison not more than three years, at the discretion of the court."

*

The fourth section of this statute is as follows: That if any of the implements, devices, or apparatus commonly used in games of chance usually played in gambling-houses, or by gamblers, are found in any house, room, booth, shelter or other place, it shall be prima facie evidence that the said house, room, or place where the same are found is kept for the purpose of gambling. Upon the trial the judge charged the jury as follows: "(2) If any implements, devices, or apparatus commonly used in games of chance usually

played in gambling-houses, or by gamblers, are found in any house, room, or other place, the finding of such implements, devices, or apparatus in said house, room, or other place is prima facie evidence that such instruments are used for the purpose of gambling; that is, the law presumes, upon the finding of such implements, devices, or apparatus in a house or room that said implements were used for gambling purposes, and the burden of showing that they were not used for gambling purposes devolves upon the prisoner, if the jury believes from the evidence that the prisoner kept, exercised, and maintained the house or room in which they were found."

The defendant's counsel excepted to the above second charge, and presented the following instructions, which the judge refused to give:

(1) That the fourth section of the statute (stating its terms) is unconstitutional and void, as depriving the defendant of equal protection of the laws of the land, and subverting the presumption of innocence.

(2) That the finding of any of the implements, devices, or apparatus commonly used in games of chance usually played in gambling-houses, or by gamblers, in any house, room, booth, shelter, or other place, is not prima facie evidence that the house or room or place where the same are found is kept for the purpose of gambling.

The giving of the above charge, and the refusal of the first and second instructions asked by the defendant's counsel, involve two questions: (1) Is the fourth section of the statute in question unconstitutional? and (2) is the "charge," as given, justified by the fourth section of the statute, or is it proper independent of said section?

(a) It is argued that the fourth section is unconstitutional, because it deprives the citizen of due process of law, and the definition of such process of law given by Daniel Webster is referred to in support of the argument. "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." These words are the substance of the definition; the others but explain them, by stating what is not such law of the land. They are either familiar or easily accessible to all. This section of the statute is applicable to all who may come within its provisions. It is general, and not special. It does not of itself condemn any one; but it establishes a general rule, to be applied by the courts in the trial of any one charged with the offense denounced by the statute, and to which it applies. It does not present a suggestion contrary to, proceeding only upon inquiry, or rendering judgment only after trial. It establishes a general rule governing society in the matter to which it is applicable; and the liberty of one citizen, not more nor less than another, is subject to its provisions.

All this section does is to make the finding of any of the implements, devices, or apparatus, commonly used in games of chance, usually played in gambling-houses or by gamblers, prima facie evidence (if there is nothing in the attendant circumstances, or in any of the evidence in the case, raising a reasonable doubt to the contrary in the minds of the jury) that the house, room, or place where the same are found is kept for the purpose of gambling. It establishes a rule of evidence. It relieves the state, in the absence of anything to create such reasonable doubt, from the necessity of introducing further proof or further evidence to make out a prima facie case of the room having been kept for the purpose in question. The fact that such an implement or device has been found in a room is, when proved, a circumstance going to show that the room is kept for the purpose of gambling; and, with the proof of other essential facts, will make out a case against the person charged. Though, independent of the statute, proof of such finding is not prima facie evidence that the room or other place is kept for the purpose of