| Ala. | Nov 15, 1896
The defendant -was convicted for betting at a game played with cards at “an outhouse where people resort.” The evidence showed that the playing took place in “a storehouse” not then used as a house for business, or any ostensible purpose. There was no error in admitting the evidence of the various witnesses, who testified to playing cards with the defendant in the building at different times. This evidence was competent to sustain the charge, that the building was an outhouse where people resort. The defendant testified as a witness in his own behalf. On cross-examination he was asked by the solicitor, “You have followed this business [gambling] for a livelihood for a long time?” Counsel for the defendant objected to the question, and the objection was overruled. The objection is general, and as a general rule, such objections are unavailable, as the trial court is not bound, to “cast about” for the reasons to maintain the objection ; but when the evidence is patently objectionable and illegal, a general objection may be sufficient. The only purpose of such evidence was to affect the character or reputation of the defendant, and prejudice him before the jury; or as tending to show, that the defendant was guilty on the particular occasion as charged, from the fact that he gambled for a livelihood. The objection was well taken and should have been sustained.
As to the other exceptions to the admissions, the objections were general, and the general rule we have stated is applicable. Moreover, in some instances there does not seem to have been any objection to the question, but only to the answer. A party cannot speculate on the answer of a witness, responsive to a question, and claim the benefit of it, if favorable, and discard it if prejudicial.
In the argument for the defense, counsel criticized the action of the State’s witness “for giving away his com
The solicitor in his closing remarks, stated: “I expect gamblers are bound together, and I expect they take an oath to stand by each other,” to which the defendant excepted. It will be seen that the statement was a mere expression of belief or opinion, and not the statement of a fact, which the rule forbids. We presume also the statement was made with reference to the testimony of the defendant, and of the witness Martin, who was then under indictment for betting at the same place, to the effect, that they knew of but a single game played at this house, whereas there was testimony of other witnesses, to the effect that they had- seen the defendant and Martin and others playing cards there and betting on several other occasions. We are of opinion that the declaration of the solicitor, under the circumstances, does.not require a reversal of the cause on this account.
The word “aloof” used in the charges requested by the defendant', were calculated to mislead the jury. An “ outhouse ” is one not used for a dwelling or business purposes. It may be adjacent to other houses. Although “ aloof ” may mean “ separate ” or “ apart ” from other houses, it also carries with it the meaning of “standing off,” “at a distance,” which is not necessary to constitute an outhouse where people resort. The law as to “ an outhouse where people resort,” has been sufficiently construed, and we find no error in the ruling 'of the court upon instructions given or refused to the jury. See Downey v. The State, 90 Ala. 644" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/downey-v-state-6514057?utm_source=webapp" opinion_id="6514057">90 Ala. 644; Ib. v. The State, 110 Ala. 99" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/downey-v-state-6516544?utm_source=webapp" opinion_id="6516544">110 Ala. 99 ; Pickens v. The State, 100 Ala. 127" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/pickens-v-state-6515329?utm_source=webapp" opinion_id="6515329">100 Ala. 127.
For the error pointed out the judgment must be reversed.
Reversed and remanded.