Dennis v. State

139 Ala. 109 | Ala. | 1903

HARALSON, J. —

The defendant was ‘proceeded against under section 4792 of the Code, for playing a game of cards or dice in a public place.

• The evidence on the part of the State tended to show that defendant and a party of negroes in April, 1903, were engaged in playing with dice in a game of “throwing craps,” near the “Davis place,” about twenty feet from the State lands, outside the fence on the edge of a swamp of the Davis place; near the house of W. W. Goff, who was a guard of convicts confined at'Speigners; that Andrew Thompson and Allen Robinson were of the party playing, and that the parties engaged in the playing were arrested on the spot.

The evidence of all the witnesses for the State, except that of Allen Robinson, was to the effect that the game was played in tlie month of April, 1903. Allen Bobinson testified, that he was shooting craps with the defendant, and that he and the others engaged in the game were arrested; that the game was played on the lands of the State in the corner of the fence about fifty yards from Mr. Golf’s house, and that the playing was in May or June, 1903. He also testified, that he had played craps on the State’s place in this same fence corner, off and on for four or five years, and that the place, was known as “the old crap ground.” The defendant moved to exclude Bohinson’s testimony, on the ground that it ivas irrelevant and immaterial, and that the game of craps referred to by him, was being played upon the lands of the State, in a fence corner, and in the month of May or June, 1903, and the Stale had elected to base the prosecution upon a game played on what was known as the Davis place, occurring in the month of April, 1903, which motion was overruled,. Evidence was wanting to show, that the playing took place on the Davis place. The nearest approach to it was, that Golf swore, that the game was played “about twenty steps distant from the State lands outside of the fence on the edge of a swamp of the Davis place.” This does not mean that it occurred on the Davis place, but outside of its fence of that place and on the edge of a swamp.

The evidence was not irrelevant to show that the ganie the witness Bobinson was testifying about, was the same game the other State’s witnesses deposed to as occurring in April, 1903. Bobinson identified the game in which he played with defendant as being the one the other witnesses deposed to as occurring in April; the only material difference of the witnesses being, that he states that it occurred in May or June, and the others, that it occurred in April. He did not testify that he had never played in any other game in which defendant participated, at any other time or place. This difference in the testimony of the witness, Bobinson, from the others, was easily reconcilable with their evidence, on the score of a mistake on the part of Bobinson, which was a matter properly determinable by the jury. To that end, it was certainly not subject to the objections raised against it.

The evidence of tlie witness, Robinson, tended to prove tlie character of the place, as one to which the people resorted to play craps. He stated that he had played craps in this same fence corner, off and on, for four or five years, and the place was known as “the old crap ground,” and this was sufficient evidence on which to find that the place was a public one. — Finnem v. State, 115 Ala. 106.

There was no error of which the defendant can complain in the portions of the oral charge of the court excepted to by him, nor was there error in refusing the general charge requested by him.

In the course of his speech to the jury, the solicitor said: “Yon gentlemen know.the evils attendant upon these crap games, — a crowd of negroes with a bottle of whiskey in one pocket and a pistol in the other, get together to gamble, and yon know what crimes grow ont of these meetings'.” The defendant objected to this language, and moved to exclude it from the jury. The court overruled the objection and motion, and defendant excepted.

The correct rule in this respect, is stated in Cross v. The Slate, 68 Ala. 484, where it was said, quoting from the case of Brown v. Swineford, 44 Wis. 282, “it is sufficient to reverse a judgment, for counsel, against objection, to state facts pertinent to the issue, and not in evidence, or to assume, arguendo, such facts to be in the case when they are not.” This court added: “We would not embarrass free discussion, or regard the many hasty or exaggerated statements counsel often make in the heat of debate, which can not, and are not expected to become, factors in the formation of the verdict. Such statements are usually valued at their true worth, and have no tendency to mislead. It is only where the statement is of a substantive, outside fact — stated as a fact— and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.”

In this instance the solicitor did not state as a fact in the case, that there was a bottle of whiskey or a pistol in the pocket of any one that played, but he was merely using what he said as to this matter, as an an illustration of the evils that may grow out of gambling, and urging this as an argument in favor of suppressing the habit. The court committed no error in overruling the motion to exclude the language excepted to.

Affirmed.