Sikes v. State

67 Ala. 77 | Ala. | 1880

STONE, J.

— The indictment in this case is defective. It charges that “James Sikes, who'i-s the owner or keeper of a saloon in which vinous, spirituous, or other intoxicating liquors are kept for sale, having a billiard table connected therewith on which the public can play,” &c. All these averments relate to the time present, when the indictment was found. They should have been charged to exist at the time the alleged misdemeanor was committed ; for, it is those attendant facts and conditions which make the act charged an indictable offense. — Sherban v. Com. 8 Watts, 212; 1 Arch, Pl. (by Waterman, 86,) and notes. If, in the present case, the indictment had charged that “ James Sikes, who was at the time the owner and keeper of a saloon in which vinous, spirituous or other intoxicating liquors were then kept for sale, having a billiard table connected therewith, on which the public could play, did knowingly permit,” &c., it would have been sufficient.

In the affirmative charge given to the jury at the written request of the solicitor, the Circuit Court committed an error. It was not positively shown in the evidence that the game was played oh a table on which the public could play. That is, a table kept in connection with the saloon, for the public to play on. The testimony tends to show the defendant had two tables — one to play billiards on, and the other, for playing the game of pool.. The difference in the structure of the tables was slight. The billiard table was a modern one, without pockets. The pool table, on the model of the former billiard table, having six pockets. Both games were played with balls aod cues, but while billiards was played with four balls, pool was played with a greater number. Under the title “ Billiards,” American Cyclopaedia, it is said : “ Billiard tables are divided into three classes; they may have four pockets, six, or none at all,” In another place, the reader is referred to Michael Phelan’s book, “ The Game of Billiards,” for “description of other games played on the billiard table, such as pyramid pool, pin pool, &c.” This work was published in 1878. In Webster’s Unabridged Dictionary, printed in 1870, the game of billiards is described as being played on a table having pockets at the sides and corners of the table. Defendant had both a billiard table without pockets, and a table with pockets, but in all other respects, like the billiard table. “ It was further proved and admitted that, formerly the game of billiards was played altogether on tables with pockets, like the one on which the game of pool was playe,d in this case ; but that lately, and within the last four or five years, in some places such tables with pockets are not used for the game of billiards, and that billiard tables are now made and used without pockets.” The act under which the present indictment was found was approved id arch . 11,1875. — Code of 1876, section 4213. This trial was had October 22, 1880. '

In interpreting statutes, we must endeavor to arrive at the meaning and intention of the legislature, to be gathered from the words they have employed. Words are but the vehicle of thought; and if, since they were employed by the legislature, they have undergone change, or, if the subject they refer to has undergone modification since their employment, we must search for and enforce the sense they bore when the statute was enacted; for such, we must presume, was the intention of the law-making power. If when this statute was enacted — March, 1875 — as the testimony shows billiard tables embraced both classes, those with, and those without pockets, then both classes are within its prohibition. We think the legislature intended, in the employment of the term billiard table, to include all tables on which the game of billiards was played at the time ; and the language will also embrace billiard tables under any modification they may .undergo. The legislature intended to regulate and restrain the demoralizing effect on the youth of the country, of having a billiard table and a drinking saloon connected together. Giving to the phrase its popular signification, it then embraced tables with or without pockets ; all tables on which the game of billiards could be, and was played.

“ Play thereon.” It need not necessarily be what is technically called a game of billiards, but it must be a kindred game; a game played with balls and cue, or mace, or some substitute therefor. Mere sport or pastime on the table, or even playiDg with the balls, would not fall within the statute. There must be a game played, or begun to be played, with balls and cue or mace, or some substitute therefor, to be within the prohibition.

“ On which the public can play.” This means that the table is kept, that the public may play thereon. It need not be for pay, but it must be sucb as the public are invited or permitted to play on. This is a question not of law, but of fact for the jury, and should hav6 been left to them. In not submitting this question to the jury, tbe Circuit Court erred.

We reverse and remand this cause, that tbe Circuit Court may quash tbe indictment. Let the accused remain in custody until discharged by due course of law.