41 So. 174 | Ala. | 1906
This defendant was tried and convicted under an affidavit charging him with gaming at a public place, under section 4792 of the Code of 1896.
The evidence showed that the building was at one time a boarding house, but that it had ceased to be used as such previous to the playing, and that at the time of the playing it was used as a private residence or lodging-house. The place was not one of the places named in the statute, either when the game was played or previous thereto. A hoarding house is not an inn, and is not per se, a public place. — Foster v. State, 84 Ala. 51. 4 South. 833. It was therefore encumbent upon the state to show that the place was a public one, and proof of other games was proper for this purpose. — Dennis v. State, 139 Ala. 109, 35 South. 651 ; Lee v. State, 136 Ala. 31, 33 South. 894.
If the question to1 the witness as to other games was vague and indefinite the answer made the games sufficiently definite: “I have seen them playing there several times during this year, before this time I have spoken about.” The game spoken about was played about March 1st, so the several other games were within a period of two months. The trial court committed no error with reference to this evidence.
Since this case was tried upon an affidavit, there is no merit in the point made by defendant that the state was bound to elect the game the witness had in mind when he made the affidavit. — Sullivan v. State, 68 Ala. 525.
The judgment of the lower court is affirmed.
