Harris v. State

31 Ala. 362 | Ala. | 1858

RICE, O. J.

— Where the Code prescribes the ingredients of an offense, and lays down a form for indictments ■ for that offense, that form, mutaiis mutandis, is equivalent to an indictment which alleges the existence of the ingredients of the offense, and of the facts in the doing or not doing whereof the offense consists. It i s upon that ground, that the forms of indictment laid down in the Code may he sustained. For, when they are thus treated, they do not relieve the State from any proof-which would be required of it under an unexceptionable common-law indictment, nor fail to give the defendant notice of the mattei-s against which he is to defend himself. It is certainly proper to consider and treat him as possessed of a knowledge of the legal effect of the indictment. Under the influence of these views, we hold, that the indictment in this case, which is substantially, if not literally, in the form prescribed in the Code for indictments under section 3243, is a good and sufficient indictment for the offenses denounced and defined by that section. True, the words used in the indictment and form are not indentical in sound with those employed in that section; but their legal effect must he deemed and taken as the same. And under the indictment, the State is not entitled to a conviction, without proof of the elements of the offense declared and prescribed by the aforesaid section. — See Code, § 3244; Cochran v. The State, at the last term, 30 Ala. 542.

2. One of the offenses punishable under said section 3243, is playing at a game with a device or substitute for cards, at a storehouse. That is the offense of which, it seems, the defendant was convicted in this case; and therefore, we shall inquire whether the defendant appears to have been tried and convicted according to law of that offense. In trying him, it was the duty of the court to refer to the jury the following questions of fact: 1st. Bid the defendant, within a year before the finding of the indictment, in the county in which it was found, play at a game of “ euchre ” with dominoes ? 2d. Was “ euchre ” a game which could be played with cards ? 3d. Was the game of “ euchre ” with cards, and the game of “ etichre ” with dominoes, though played differently in some respects, substantially the same game; that is, played upon similar principles, and with similar results? 4th. Had dominoes either become a device or substitute for cards in playing the game of “euchre,” at the time -defendant played at the game for which he is indicted, or were they in fact used in that single game, though never before, as a device or substitute for cards. It was the duty of the court, on referring these four questions of fact to the jury, to direct them that if, without any reasonable doubt, they should decide all these questions in the affirmative, then they ought to find the defendant guilty; otherwise, they ought to find him not guilty. It will be noticed,'that the foregoing question numbered 4, is put or stated alternatively; and to prevent any misapprehension, it is proper to say, that if the jury decide either branch of said alternative question in the affirmative, that meets the requirements of the law, so far as-the said question is concerned.

We deem it unnecessary to go into any particular examination of any of the charges given or refused; because it is manifest that the four questions above stated by us were not referred to the jury by the court below; and because what we decide in this opinion will probably be sufficient to guide the action of the court below on another trial.

3. We are satisfied there was no error in sustaining the objection to the question put by the defendant to the witness. The effect of allowing the question to be put to and answered by him, would be to submit to the decision of the witness a point ■which the jury alone can try.

For the error in not referring to the jury the four questions of fact herein above stated, the judgment of the court below is reversed, and the cause remanded.