delivered the opinion of the court.

The defendant was indicted in the Circuit Court of Caldwell county for betting money “ upon a game then and there played by means of a gambling device called a horse-race, which was then and there adopted, devised, and designed for the purpose of playing games of chance, for money and property, against the form of the statute,” etc.

On motion, the indictment was quashed, and the State appealed, This is an attempt to bring horse-racing within the provisions of the statute against gaming. (1 Wagn. Stat. 502, §§ 16-18.)

The question has been heretofore conclusively settled, and is no longer open to controversy. In the case of The State v. Hayden, 31 Mo. 35, it was expressly adjudged that a horse-race was not a gambling devioe within the meaning of Jhe act concerning crimes and punishments.

Judgment affirmed.