Harris v. State

33 Ala. 373 | Ala. | 1859

STONE, J.—

When this case was before in this court,. (January term, 1858,) we stated four questions as properly referrible to the jury; and declared, that an affirmative response by that body to each of these four questions would entitle the State to a conviction of the defendant. One of those four questions was stated in the following language: “Had dominoes either become a device or substitute for cards in playing tbe game of ‘ euclire ’ at the time the 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.” In another place we said, “It will be noticed, that the foregoing question numbered four 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 four is concerned.”

The former record was silent on the question, whether cards or dominoes were first used in playing the game of euchre. The present record contains some evidence on that question. It is now contended, that if euchre with dominoes is an original, independent game, in use before euchre with cards was introduced, then dominoes cannot become a substitute for cards, in playing the game of euchre. We do not assent to this proposition, to the extent claimed. Instruments, older and first in use, might be employed as a substitute for those of more modem discovery. Oars, for many supposable reasons, might be substituted for the more modern steam-engine, in propelling a steam-vessel.

There is, however, in this inquiry, one point of view in which priority of use becomes material. We said it was sufficient, if dominoes had “ become a device or substitute for cards in playing the game of euchre, at the time the defendant played the game for which he is indicted.” The only legitimate import of this language is, that if^ from former use, dominoes, in playing the game of euchre, had become stamped with the character of a device or substitute for cards, then euchre with dominoes was within the prohibitory terms of the statute. If, however, euchre with dominoes was an original, independent game, older in fact than euchre with cards, and the latter game had not substantially supplanted the former, then dominoes could not become stamped with the character, of a device or substitute for cards in playing the game of euchre. The paddle-wheels, driven by the steam-engine, may be a device or substitute for the oars of the rowboat ; the latter, while both motive powers continue to be employed, cannot become stamped with the character of a device or substitute for the paddle-wheels of the steamboat.

That portion of the sixth charge given by the court, which declares it “immaterial whether the game of euchre at cards or at dominoes were first played in point of time,” is in conflict with the views above expressed. In one phase of the 4th alternative proposition, priority of use was material. The jury should have been instructed, that if euehre with dominoes, as played by the defendant, was older in point of time than euchre with cards, and if both instrumentalities were still continued and retained in common use in playing the game, then dominoes can not have become stamped with the character of a device or substitute for cards in playing the game of euchre. In this event, the defendant cannot be convicted, unless the jury are convinced, as a matter of fact, that dominoes were used in this particular game as a substitute for cards.

Lest the jury may be misled by the sentence last above, we will add, that it is not important that the parties playing intended, or even knew, that dominoes were, in the game played, a substitute for cards.

The error in the 6th charge, .above noted, was not remedied by any other part of the charge.—Holmes v. The State, 23 Ala. 17.

We offer no opinion on the weight of the evidence. That is a question for the jury.

We have found no other errors in the record.

Reversed and remanded.