Johnson v. State

| Ala. | Dec 15, 1883

STONE, J.

Section 4207 of the Code of 1876 declares that “ any person who plays at any game with cards,” etc., “ at any tavern, inn,” or various other named places, “ must, on conviction, be fined not less than twenty, nor more than fifty dollars.” This defines the offense of playing at one of the named public places, when nothing of value is bet-or hazarded on the result of the game. Forint, on page 094 of the Code, is expressly provided for, and adapted to this section. Section 4209 of the Code enacts that “any person who bets or hazards any money, bank notes, or other thing of value * * at any game prohibited by section 4207, * * must, on conviction, be fined not less than fifty, nor more than three hundred dollars.” Form 29, same page of the Code, is in terms provided for this section — 4209. Form 29 is very brief, and does not purport to be complete in itself. It contains all the essential parts of an indictment for betting at a gaming table, or at a game called keno; but it is not full enough, when the charge is that the accused bet at one or more of the games prohibited by section 4207 of the Code. To meet such a case as that, the indictment, to be sufficient, must allege, not only that the ac cused did bet or hazard, bnt must go farther and aver substantially all that is averred in form 27. In other words, the clause of 4209 which we are construing, being nothing more nor less than the offense denounced by section 4207, aggravated by the wager, or gambling ingredient, the indictment, to be sufficient, must aver both the betting, and that one or more of the enumerated games, and at some one of the places named, was played by the accused, or by some other person or persons. We say some other person or persons; for it is manifest that one who bets on such game, when played by others, is as much an offender of the statute, as lie who both bets and plays. The indictment in this case does not charge two offenses. It only charges the graver offense denounced by section 4209 of the Code.—Collins v. The State, 70 Ala. 19" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/collins-v-state-6511211?utm_source=webapp" opinion_id="6511211">70 Ala. 19; Jacobson v. The State, 55 Ala. 151" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/jacobson-v-state-6509371?utm_source=webapp" opinion_id="6509371">55 Ala. 151.

The charge asked was rightly refused. It assumes as fact that the evidence showed the room in which the playing took place was a private room; or the language was susceptible of that construction. There was only testimony tending to prove that fact. Its sufficiency should have been left to the jury. It ivas objectionable also in its second aspect. Parties who play at a game with cards must see to it that they do not play in one of the prohibited places. Their want of knowledge of the character of the place, if it be one of those enumerated in the statute, is no excuse. A bedroom, or dwelling-house, may be used for some other purpose, which will make it one of the prohibited places. — 1 Brick. Dig. 336, § 8; Tb. 339, §§ 59, 60, 61.

No costs will be allowed to the clerk of the circuit court for the return to the certiorari.

Affirmed.-