Bythwood v. State

| Ala. | Jan 15, 1852

PHELAN, J.

Tbe effect of tbe charge of tbe court was, to declare tbe place where tbis card playing was done a “public place." Tbe defendants below could only be found guilty, according to law, on that ground.

Was that place public, or was it not? If public, it must be so in one of two ways; that is, it was of a public nature, public per se, like tbe street or highway, or it was made public at tbe time by force of circumstances.

That it was not public in its nature, it is not necessary to argue.

Was it, then, made public at tbe time, by force of circumstances?

What will make a place public, within tbe meaning of tbis statute, wbicb of itself is not so, is a question not very definitely settled by our decisions heretofore, and it becomes necessary, therefore, to resolve it upon principle.

If we look to the evil intended to be remedied by this statute of ours against playing at cards or dice in certain specified places, we cannot come to any other conclusion, than that it was the intention of the legislature to inhibit card playing only in places where the playing would be of evil example and influence, to others than those engaged in playing themselves. It must always be borne in mind, when considering this subject, that the exhibition of gaming tables and merely playing at co.rds are put upon a very different footing by the statute. Gaming tables are forbidden every where, without regard to place; card playing is only forbidden at certain places. The legislature did not intend to denounce the fact of playing at cards as a vice or crime in itself, nor is it so, any more than playing at chess or backgammon. But card playing is seductive; the practice of it, especially by the young and thoughtless, leads to gambling ; and it was its exposure, and the temptations thus offered to others, that the law intended to prohibit. To do this, certain places are expressly inhibited; they are, “ tavern, inn, store house for retailing spirituous liquors, or any public house or highway,” and then the statute adds, “ or any other public place, or any out house where people resort.”

When the playing is in any of the places specially enumerated, there is a plain rule to go by, and no matter what secrecy is given to such playing, those engaged must know that it is contrary to the statute. But the want of some well settled rule as to what shall make a place & public place, within the meaning of this statute, which is not so of itself, and which is not specially named, is calculated to embarrass, and perhaps mislead those who would not be willing to violate the law, if they fairly understood it.

It was my wish, for this reason, to endeavor to define and settle some rule upon the subject; but the majority of the court think that it is better, all things considered, not to attempt to lay down any general rule, but to leave the cases to be decided as they arise, each upon its own peculiar facts and circumstances.

Tbe facts and circumstances wbicb distinguish this case do not, in our opinion, make tbe place where tbe playing took place a public place, within tbe meaning of tbe statute. These persons went to that hollow evidently to be out of tbe way of observation, to be, in fact, concealed from tbe public view, and it is not reasonable to bold that their being there made that retired and secluded spot a public place, merely because they went to play cards, when, as has been shown, tbe evil intended to be averted was not tbe card playing itself, but tbe effect of tbe example upon others.

For tbe error in tbe charge of tbe court, tbe judgment is reversed, and tbe cause remanded.-