56 So. 64 | Ala. Ct. App. | 1911
The defendant was tried on an indictment, framed under section 6985 of the Code of 1907, charging him. with ^keeping, exhibiting, or being connected in keeping or exhibiting a gaming table for
The legal evidence in the case, as contained in the bill of exceptions, if believed, showed beyond a reasonable doubt that the room in which the table is alleged to have been kept was, at some time during the month of December before the finding of the indictment, a gambling-place, and, as the use of the table about which the witnesses testified for gambling was inseparably connected with the place in which it was kept, we have no hestitancy in saying that the legal evidence in the case showed, beyond a reasonable doubt, if believed, that the table was a gambling- table kept for gaming during- that period. It seems from the state’s witnesses and from the testimony of the defendant himself that the game was played with dice, that it was a gambling game, played on a table, and, while there is some conflict in the testimony as to whether the table was marked or figured, there was, under the undisputed evidence, a table there, kept by some one, for gambling purposes, and this rendered it a gaming table kept for gaming. Any table kept and used for gaming has been held by the Supreme Court to be a table for gaming within the meaning of the statute. The main inquiry for the court and jury has reference to the use for which the table was kept or exhibited, for it is the use that characterizes its criminality.—Toney v. State, 61 Ala. 1; Wren v. State, 70 Ala. 1; Bibb v. State, 83 Ala. 84, 3 South. 711; Huttenstein’s Case, 37 Ala. 157; Dixon’s Case, 76 Ala. 89; Smith v. State, 22 Ala. 54; 1 Mayfield’s Dig. pp. 377, 378, § 182.
It follows, therefore, that the only true inquiry in this case, under the evidence presented by the bill of exceptions, before the jury on the trial in the court below, was whether or not the evidence showed, beyond a rea
The offense with which the defendant is charged is,, under our statute, a felony. At common law, it was declared to be a nuisance and was indictable as such. The offense, under our statute, may be committed by one act, or by a series of acts constituting an offense continuous in its nature. It may therefore be proved by one act, or by a series of acts.
. “Where several crimes constitute, in fact, one criminal transaction,'evidence of all of such crimes may be given as part of the res gestae of the offense with which the defendant is charged in the indictment.”—Allison v. State, 1 C. of. App. 206, 55 South. 453. It was therefore competent in this case for the state, for the purpose of showing the character of the table, to offer evidence not simply as to one game, but as to a series or any number of games played on the table; that it was kept in a room frequented by gamblers and in which gambling was done; and that the table was used as an intrument in gambling or was gambled upon, whether the defendant was or was not present at all of such games.
There is wide diversity of opinion between modern text-book writers, and also the various courts of last resort in the states of the Union, as to whether proof of' offenses which were indictable nuisances at common law can be aided by evidence of common repute.—2 Wigmore on Ev. § 1620; 1 Wigmore on Ev. § 202; Underhill on Crim. Ev. § 475. This diversity is probably due to the difference in the language of the indictments and statutes under consideration, and also to confusion as to the real issue, i. e., whether the fact in issue is fame or reputation, or actual habit or character.—2 Wigmore on Ev. § 1620.
In the case of Wooster v. State, 55 Ala. 221, the Supreme Court says: “The accusation is of a specific offense, in its nature susceptible of proof by witnesses who speak from their knoAvledge. The rule is that hearsay evidence — and such is the evidence of reputation— is inadmissible to establish any specific act, capable of direct proof by witnesses who speak from their OAvn knowledge; and AArhen the rule is relaxed it is from necessity alone.”
The testixxxony of the witness W. D. Hales, except that part of it which related to the offer of compromise, Avas, subject to the hereinafter qualifications, relevant and competent. As the offense with Avhich the defendant was charged can be proved by one act or by a series of acts so connected, together as to form one continuous criminal transaction, the statement which Hales testified the defendant xnade to him may, in one sense, be regarded as pai’t of the res gestae of the offense. This
In this case it is not necessary for us to intimate an opinion as to whether the admissions testified to by this witness are shown affirmatively to have been voluntarily made. It is sufficient for us to say that in all criminal cases primary courts should satisfy themselves, by preliminary proof, that confessions are admissible, before permitting them to go to the jury.—State v. Stallings, 142 Ala. 112, 38 South. 261; Ammons v. State, 80 Miss. 592, 32 South. 9, 18 L. R. A. (N. S.) 777, 92 Am. St. Rep. 607.
'That portion of the testimony of W. D. Hales in which he stated that the defendant said “he wanted to know — he said he did not think that he ought to be punished for that — he wanted to know who my frieuds Avere, if we could not come to a compromise,” was incompetent' and should not have been alloAved in evidence. Under the decisions of our Supreme Court, offers of compromise cannot be proven against the. party making them. The rule is applicable to criminal as well as civil cases. —Wilson v. State, 73 Ala. 527; Sanders v. State, 148 Ala. 603, 41 South. 466.
When an admission in the nature of a confession, or when a confession, is made, it is not necessary for the state to prove the whole of the statement made by the defendant to the witness. If the state proves a part, the defendant may prove the remainder if he sees proper so to do.—Webb v. State, 100 Ala. 52, 14 South. 865; 1 Mayfield’s Dig. pp. 203, 204, § 28. On the néxt trial of this case, if the admissions which the witness W. D. Hales claims the defendant made to him are offered and admitted in evidence, by the court, it will be permissible
There is nothing in the contention of the defendant that the court erred in admitting testimony tending to show that the room and table about which the witnesses testified were used for gaming in the absence of the defendant. Under indictments of this character, there are two distinct material inquiries for the jury. The first inquiry is: Was there a gaming table used for gaming within the period covered by the indictment? And, if that question is answered in the affirmative, then the second inquiry is: Did the defendant keep or exhibit, or was he interested in exhibiting or keeping, the table for gaming during that period? On the first inquiry, in fixing the character of the table, we refer to what we have had to say on that subject under section 2 of this opinion.
In addition to this, while we, for obvious reasons, refrain from expressing any opinion as to the weight or sufficiency of the evidence tending to show that the defendant kept or exhibited, or was interested in keeping or exhibiting, the table for gaming purposes, there is legal evidence, shown in the bill of exceptions, tending to show defendant’s connection therewith during the entire period covered by the testimony, and for this reason, as well as for the reasons set out in section 2 of this opinion, it was permissible for the state to introduce evidence of gambling on the table, whether the defendant was present at all of such games or not. —Allison v. State, I Co. of App. 206, 55 South. 453; 1 Wigmore on Ev. § 202; Toney v. State, supra.
8. Henry Hales testified that in a conversation had with the defendant he told defendant “that my brother said that he had been there and lost some money,” and Mr. Martin stated “that he Avas not present AAdiefi he was there, that he had not seen him, but Avould ascertain if he had been there, and if he had been there he Avould return the money to me.” The Avitness- Avas then allOAved to testify, against the objection of the deefndant, that the money vms sent to him, but he did not knoAV by Avhom. It is manifest that the court committed no error in permitting this testimony. The fact that the money Avas sent to the Avitness had a direct tendency to connect the defendant with the gaming table at which the money Avas lost, if it was lost at a gaming table.
9. There is nothing in the contention of defendant that the state failed in its evidence because of the absence of proof that the table AAvas operated for hire or reward. The laAV will no more permit the keeper of a gaming table for gaming to escape its punishment because of a lack of evidence that his table wás kept for hire, than it will excuse the commission of any other felony because it does not- in the particular case, possess evidence of the motive which actuated the crime. It is not because the gaming table is a table kept for hire that the laAV condemns it.' It is because its exhibition for gaming purposes is detrimental to the good order and well-being of the public that the law condemns it. It is not because a common prostitute sells her favors
The table in evidence was a table on which a game of chance was played with dice. "Whether the table was, as testified to by W. D Hales, “a table with figures on it and dice and money; that the table was marked off, covered with green cloth, with white chalk figures, half-moon shape; when you bet on the man shooting the dice, if you lose they took the money, if yon win, they paid the money; they had figures -1, 6, 8, and 10, and some place an open bet, and the field” — or whether it was some other kind of table, it matters not. The evidence shows conclusively that it was a gaming table for gaming and some one was its keeper. That was sufficient. ‘‘A crap table is within the statute prohibiting the keeping and exhibiting a gaming table.”-—Harmon v. State (Tex. Cr. App.) 22 S. W. 1038. It is the use of the table for gambling which the law condemns.—Toney v. State, supra.
10. Charge No. 2 requested by the defendant was calculated to confuse and mislead the jury, and was properly refused. The defendant and some one else might have been the joint keepers of the table, or “some one else” might have been the “keeper” of the table and the defendant might have, at the same time, been interested in “keeping or exhibiting” the table for gaming.
“The instructions must embody correct legal propositions applicable to the issues and evidence, expressed in clear, unambiguous language, free from all involvement and from all tendency to mislead or confuse the jury, and instructions wanting in the above essential elements have been often declared properly refused.”—1 Mayfield’s Dig. p. 164, § 30. As applied to the evi
11. Charge 3 was also properly refused. It is not as broad as the language of the indictment and does not cover all the tendencies of thé evidence in the case.
12. Charge No. 4 was also properly refused. The charge was copied from charge No. 66, which was held to be good, in Pickens v. State, 115 Ala. 42. 22 South. 551. The charge in this case substituted the word “should” for “would” used in said charge in the Pickens Case, and the substitution of “should” for “would” changed the meaning of the'charge and gave to it a misleading tendency.
13. The court also properly refused to give charge No. 5 asked in. writing by the defendant. It seems to have been copied from Elmore v. State, 92 Ala. 51, 9 South. 600, in which the Supreme Court uses the following language: “Certain it is that they ought not to convict without a reasonable belief of guilt, and even such a reasonable belief might not be sufficiently strong to exclude a reasonable doubt to the contrary.” The charge asked is: “The jury should not convict the defendant without a reasonable belief of his guilt, and even such reasonable belief might not be sufficiently shown to exclude, a reasonable doubt to the contrary.” The above excerpt from Elmore v. State is a correct statement of the principle of law. The above charge is speculative and misleading and is not expressed in clear and unambiguous language applicable to the evidence in this case.-—McGee v. State, 117 Ala. 229, 3 South. 797.
There are certain exceptions to the rulings of the court below’ shown by this record which we have not referred to. The important questions have all been discussed, and we do not think that the rulings of the
For the errors pointed out, this cause is reversed and remanded.
Reversed and remanded.