Windham v. State

| Ala. | Jan 15, 1855

RICE, J.

— Section 3243 of the Code is a substantial transcript of the law against gaming which had been of force at least from 1842 until the Code took effect. That section is in the following words: “If any person plays at any game with cards, or dice,' or with any device or substitute for the same, at any tavern, inn, store-house for retailing spirituous liquor, or house or place where spirituous liquor is retailed or given away; or any public house, or highway, or in any other public place ; or in any out-house where people resort, such person, on conviction, must be fined not less than twenty or more than fifty dollars.”

The words “ public place,” as used in this section, do not mean or include any of the places therein before specifically mentioned, — that is “ tavern, inn, store-house for retailing-spirituous liquor, or house or place where spirituous liquor is retailed or given way ; or any public [house, or highway”— however public any of these specified places may be. ' But the words “ public place,” as therein used, do mean and include all “ other” places which are public, whether they are public ■per se, or become public merely by force of circumstances.— “ Public house” in this statute isa specific term, and is followed by a term of more comprehensive meaning — that is, “an j other public 'place.” And therefore, upon a well established principle, it has been decided, that although a person may be guilty of playing cards at a “ highway,” (“ or public house,”) such person cannot lawfully be'convicted for playing cards at a “public place.”—Bush v. The State, 18 Ala. 415" court="Ala." date_filed="1850-06-15" href="https://app.midpage.ai/document/bush-v-state-6504375?utm_source=webapp" opinion_id="6504375">18 Ala. 415.

In Johnson v. The State, 19 Ala. 527" court="Ala." date_filed="1851-06-15" href="https://app.midpage.ai/document/johnson-v-state-6504580?utm_source=webapp" opinion_id="6504580">19 Ala. 527, it was decided, that a room in the second story of a two-story house, which was accessible only by means of a flight- of steps leading up to it on the outside, and which was used by one of the proprietors of the house as a sleeping apartment, (the lower room being used by .the proprietors for retailing spirituous liquor,) was within the prohibition of the statute against gaming at a “ store-house for retailing spirituous liquor,- or house or place where spirituous liquor is retailed or given away.” Believing this decision to be correct, we are under its influence impelled to the conclusion, that if the evidence set forth in the bill of exceptions in the present case be true, the room in which the plaintiffs in error played was, at the time of the playing, a “ public house”, within the meaning of the statute.

In Clark v. The State, 12 Ala. 492" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/clarke-v-state-6503439?utm_source=webapp" opinion_id="6503439">12 Ala. 492, Chief Justice Collier (a majority of the court concurring with him) held, that if a lawyer, or a physician, “ invites a few friends to his office, either in the day-time or night, and closes the door so as to exclude all others, that he may spend a social hour at cards or dice with these friends, it ceases to be a public-place, within the meaning of the statute.” The principle of that decision was followed in Roquemore v. The State, 19 Ala. 528" court="Ala." date_filed="1851-06-15" href="https://app.midpage.ai/document/roquemore-v-state-6504581?utm_source=webapp" opinion_id="6504581">19 Ala. 528, in Burdine v. The State, 25 Ala. 60" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/burdine-v-state-6505338?utm_source=webapp" opinion_id="6505338">25 Ala. 60, and in Sherrod v. The State, 25 Ala. 78" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/sherrod-v-state-6505345?utm_source=webapp" opinion_id="6505345">25 Ala. 78. We do not now feel at liberty t<? overrule those cases. The charge of the court below is opposed to those decisions, and is not sustained by Campbell v. The State, 17 Ala. 369" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/campbell-v-state-6504206?utm_source=webapp" opinion_id="6504206">17 Ala. 369, which held a shoe-maker’s shop a “ public place,” mainly on the ground that many passed into and out of it during the playing ; which case we here re-affirm. Nor is it sustained by the case of Mills v. The State, 20 Ala. 86" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/mills-v-state-6504666?utm_source=webapp" opinion_id="6504666">20 Ala. 86.

But it must be noticed, that in Clark v. The State, supra, Chief Justice Collier conceded, that the office of the lawyer or physician was a “ public house,” which was not denied by any of the judges in that case, and which is not denied or questioned in Burdine v. The State, or Sherrod v. The State, aboved cited.

When the playing is in a public house, or in any of the other places specifically enumerated in the statute, no matter what secrecy there may be in the playing, nor how few the friends who may be spending their “ social hour at cards or dice,” they are violators of the statute, and incur its penalty. Bythwood v. The State, 20 Ala. 47" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/bythwood-v-state-6504659?utm_source=webapp" opinion_id="6504659">20 Ala. 47.

If the court below had charged the jury, that if they believed all the evidence set forth in the bill of exceptions, the room in question was a “ public house”, we should have sustained the charge. But in charging that the room was a “ public place”, the court below erred ; and therefore we reverse its judgment, and remand the cause.