¶1delivered the opinion of the court.
¶2Hugh Flack was indicted for that he did unlawfully bet a sum of money, to-wit, fifty cents, at and upon a game of *379chance, played with and by means of half dollars and cracks in the floor of a house, which said half dollars and cracks was ■ then and there a gambling device, adapted, devised and designed for the purpose of playing games of. chance for money and property.
¶3This indictment is under the code of 1845. The 16th section of the 8th article of the act concerning crimes and their punishments therein contained makes it unlawful to bet at or upon any gambling device. So the indictment would have been good under this section, although there had been no allegation that the device was adapted, devised and designed to play a game of chance for money or property. As it is, we are of the opinion the indictment is good ; maintaining that, whether the device used was adapted, devised and designed for playing any game of chance for money or property was a matter to be shown in evidence by the State on the trial. The other judges concurring, the judgment will be reversed, and the cause remanded.