90 Ala. 644 | Ala. | 1891
The charges asked by defendant, and refused by the court, raise the question, what circumstances are requisite to constitute “ an out-house where people resort,” in the meaning of section 4052 of the Code. The first instruction affirms, that an out-house where people resort, as used in the statute, “ is an out-house where persons frequently or habitually resort, not a place where persons go once, or only occasionally.” The case of Swallow v. State, 20 Ala. 30, by the use of the word habitually, apparently lends support, to the proposition Cf the charge, but does not really, when it is observed that the question before the court was, whether a vacant store-house in a town, which was commonly kept locked, was an out-house, not its character as a house of resort. This is shown by comparing with the evidence the charge to the jury — “ if they believe the evidence, said house was an out-house, and that if they believe peoifie resorted there for the purpose of playing cards, they must find the defendant guilty.” This charge, on appeal, was held to be correct, and the question properly submitted to the jury, the only evidence in this regard being that persons had been seen playing cards in the house once or twice,and that one of the times was when the accused played.
It is difficult, if not impracticable, to lay down any fixed and definite rule as to when, and under what circumstances, an out-house becomes one where people resort. The evil to the suppression of which the statute is directed, is playing any game with cards or dice, or any device or substitute therefor, at places where unwary persons might, or probably would be, enticed or tempted to engage in the alluring and pernicious practice of gaming. The legislature, having in view the protection of the public morals, not only prohibited gaming at several specified houses, public in themselves, but, to more effectually restrain the evil example, superadded, “ or in any
The only definite rule established by our decisions is, that parties going once to an out-house, for the purpose of playing cards, does not, in the absence of proof that they or other persons had gone before, for such or any other purpose, constitute such house an out-house where people resort, within the meaning of the statute.—Cain v. State, 30 Ala. 534. There is no decision in this State, attempting to fix the number or frequency of the occasions, or the sufficiency of one occasion, if there are persons present other than the participants in the game. In Texas there is a similar statute, in which the same terms are employed. Construing the statute, the Supreme Court, holding, as in Cain v. State, supra, that once going, no one being present but the parties themselves, is insufficient, also held, that if the parties go on more than one occasion, or if more persons are present on one occasion than those who go lor the purpose of playing, this is sufficient to bring the outhouse within the statutory description of an out-house “ where people resort.” It is said : “But, as it is impossible to say with precision how many more occasions than one, or persons than those who go for the purpose of playing on one occasion, shall be sufficient, if it might be fairly inferred from the evidence that the house had been resorted to for such a purpose on any other occasion, or that on the particular occasion there had been one person present besides the parties concerned, it might well be held, that the evidence was sufficient to warrant the verdict, and make the conviction right.”
Tho purposes of this case do not require us to declare any rule in respect to the sufficiency of one occasion, when there are present others than those participating in playing, or the number who must be present. Unless there can be found in the statute itself some reason for restraining or qualifying the general words, they must receive a general construction, and are not to be restrained by judicial addition or curtailment. The construction that, in order to bring an out-house within the statutory description, the resort must be frequent or habitual, requires the interj)olation of qualifying or modifying
Affirmed.
