20 Ala. 86 | Ala. | 1852
This was an indictment against the defendant, Mills, for gaming, playing cards at “a public place.”
Tbe court charged tbe jury that, if they believed tbe evidence, they must find tbe defendant guilty. This renders it necessary that we should set out tbe evidence, which is shown by a bill of exceptions as follows:
The question in the court below, and that which is made here, as involving the sufficiency of this evidence, conceding it to be true, is, does it show that the playing was at such a public place as is contemplated by the statute ?
The statute inhibits the playing 11 at any tavern, inn, store house for retailing spirituous liquors, or house or place where spirituous liquors are retailed or given away, or any public house or highway, or any other public place, or in any out house where people resort,” &c.
We do not entertain a doubt that this playing was at a public place, and that the object of the statute would be frustrated, if gaming could be thus exhibited upon a neighborhood road, near the assemblage of a number of persons, and where they may witness it at pleasure.
The more plausible objection to a conviction is, that the road is a highway as contemplated in the statute, which would make a variance between the proof and the indictment; but. we think by the term “ highway,” as used in the statute, the Legislature meant a public road, that is, a road dedicated to, and kept up by the public, as contra-distinguished from private ways or neighborhood roads, which are not so kept up.
The case of Clarke v. The State, 12 Ala. Rep., 492, is not opposed to the view here taken. There the playing was in a shop, closed and made private by the exclusion of the public. Here, upon a road which the neighbors were accustomed to travel, and at a time when they were passing.
Let the judgment be affirmed.