50 Ala. 168 | Ala. | 1874
The defendant was indicted for a violation of section 3622 of the Revised Code, by betting at a game of cards played “ in a highway, or at a public place.” He demurred to the indictment, but his demurrer was overruled; and this action of the court is now assigned as error. The record does nob inform us what causes of demurrer, if any, were assigned in the court below; and we have not been furnished with any brief or argument of counsel, pointing out the specific objection intended to be raised by the demurrer. It seems to us the count is sufficient. It avers every fact necessary to the guilt of the accused. The playing of cards at a place prohibited by the statute, the betting thereon by the defendant, and the thing bet, — fractional currency of the United States, — its denomination and value, are clearly and positively alleged. There was, therefore, no error in overruling the demurrer to the indictment.
The playing in this case was at a storehouse where spirituous liquors were retailed. Though the statute uses the words “ at a storehouse,” &c., any playing so near to such a house as to let in the evil which the statute was designed to suppress, must be deemed a playing at the house. Here, the playing was near to, and in front of the storehouse, and in the presence of a large number of persons assembled at the house. All the evils which could result from a playing within the walls of the house, would equally result from this playing. The playing, then, being at one of the places specifically mentioned in the statute, a conviction of the players could only be had under an indictment alleging the playing at that particular place. When the indictment is against one betting on the game, the same rule must prevail. If the participants in the game could not be convicted on the allegations and proof made against him, he cannot be convicted. The charge given, and the refusal to charge as asked, were, therefore, both erroneous. Under the evidence set out in the record, the defendant might be convicted under an indictment alleging the playing to have been in a storehouse where spirituous liquors were retailed..
The judgment is reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law.