The affidavit was not subject to the demurrer interposed to it. — Code, § 4794; Crim. Code, Form 24, p. 327.
Under the authority of Mills v. The State, 20 Ala. 86, the place at which tlie defendant was arrested, was a public place within the statute against gaming.
The record purports to set out all the evidence, and there was no proof that the defendant bet any money, bank-notes, or other thing of value at the game. The State failed to malee out the charge against him, and he was entitled to his acquittal. A conviction of the offense of betting at a game of cards cannot be supported upon mere proof of playing at a game of cards. The two offenses are distinctly different. — Chambers v. The State, 77 Ala. 80; Clayborne v. The State, 103 Ala. 53.
Judgment reversed and cause remanded.