Roquemore v. State

19 Ala. 528 | Ala. | 1851

’COLEMAN, J.

The indictment in this ease charges that ¡ the defendant played a game of cards at a public place, &c. ' The defendant insists that the place ought to be so described .in the indictment.that the court could determine whether it was ;a public place.

Without the aid of the statute it is probable the averment would be insufficient, but we thinlc the indictment clearly sustained both by the letter and policy of ¡the statute. By the 8th section, chapter 6th, of the penal code, it is enacted that “if any person shall play 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, at -any game of -cards,” &c. Section 11, of the same chapter., -declares, that on the prosecution of any person for gaming, against the provisions aforesaid, it shall be sufficient for the indictment to charge that the person so offending did play at cards, See., in some of the places above specified. .A public place is certainly enumerated among the places above specified, and thus it appears the statute has declared it shall be sufficient for the indictment to.charge that the defendant played at cards in “ a public place.”

We think, however, that the court erred in-charging the jury that the place at Avhich it was proven the playing occurred was a public place. In the case of Clark v. The State, (12 Ala. 492,) the court decided that the office of a physician, wrhere he exhibited his medicines, received professional calls 'at all times, and being unmarried, ate, and slept, is not a public place within the statute against gaming, the playing being at night, with closed doors, and a few friends present by invitation. In this case the playing occurred in the night time, in a back room, whore C. Rist, -the Register in Chancery, slept, which adjoined and communicated by a door, with a front room, which was the said register’s office; that said back room was surrounded in the rear by a high-fence, the doors wereloeked, .the windows .closed, and about eight persons present by invitation of Rist, and that these entered by a hack door, and not through the public office. We consider a room in which every one having business has a right to enter, such as the register’s office in this case, a publie place; but his bed-room, where none had a right to enter, unless invited by the owner, Avas not a public place. I think the case above referred to, much stronger against the State than this, ;and the principle there held decisive of this case.

The judgment .is therefore reversed, and the cause remanded.