Clayborne v. State, 103 Ala. 53

PIARALSON, J.

The indictment in Johnson v. The State, 75 Ala. 8, charged that the defendant “played at a game with cards, at a public house, and did bet or hazard money or bank notes at said game.” It was held that the indictment did not charge two offenses — not the offense of playing with cards, etc., as prohibited by section 4052 of the Code, and betting on such game, prohibited by section 4057 — but only the graver offense of betting, denounced by the last named section.

In Tolbert v. The State, 87 Ala. 29, where the indiclment charged that the defendant bet at a game of cards, etc., at one of the prohibited places, without also charging that a game was played, the court held that it was fatally defective. — Dreyfus v. The State, 83 Ala. 54; Smith v. The State, 63 Ala. 55.

A new form of indictment for betting at cards, etc., under section 4057, was provided in the Code of 1886— Form sixteen, page 267 — under which we have held it is no longer necessary to allege that a game “was played,” as was required in indictments therefor, before this form was provided. — Rosson v. The State, 92 Ala. 76. The solicitor in drawing this indictment was, no doubt, following our former rulings, in presenting an indictment good for betting. These forms, provided for the guidance of prosecuting officers in drafting indictments, are not exclusive of other forms, in which the offense is well and aptly charged ; but, it will be better practice to follow them in cases where they are applicable. And the safer practice also is, to have different counts in the indictments, to meet the different phases the case, under the evidence, may assume. If, for instance, there had been here, a count for playing as well as the one for betting at cards, the difficulty encountered would have been obviated.

The presentment in the case at bar is good and sufficient for betting at cards, and, if we follow our former adjudications, it is not demurrable for duplicity. Under it, the defendant could be tried only for the offense of betting, as provided by said section 4057 of the Code. The court found him guilty of playing cards, an offense with which he was not charged, and fined, him $20. This was an erroneous finding. It was, however, in legal effect, an acquittal of the offense of betting, with which he was charged. And, inasmuch as he can not be tried for playing under this indictment, and can be tried again only for the offense of which the court found him guilty, and not for that of which he was acquitted, it follows he cannot be longer held under this indictment. — 3 Greenl. Ev., § 36; Bell & Murray v. The State, 48 Ala. 684; Mitchell v. The State, 60 Ala. 26; Nutt v. The State, 63 Ala. 184; Berry v. The State, 65 Ala. 117; Smith v. The State, 68 Ala. 429; Sylvester v. The State, 72 Ala. 206 ; De Arman v. The State, 77 Ala. 10.

The judgment is reversed, and an order discharging defendant will be here entered.

Reversed and rendered.

Case Details

Case Name: Clayborne v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1893

Citation: 103 Ala. 53

Court Abbreviation: Ala.