Swallow v. State , 20 Ala. 30 ( 1852 )

PhelaN, J.

This court has decided, in the case of Cameron v. State, 15 Ala., 383, that “ the offence of gaming is complete by playing once.” This case disposes of that point.

It is quite clear that a vacant store house, such as that described in this case, if habitually resorted to by persons for the purpose of playing cards, comes within the provisions of the statute against playing at any “ out house where people resort.” The case of Cameron v. State goes to this point also. The question whether it was so resorted to or not was properly left to the jury.

In the charge given by the court to the jury, “that if any one or more of their number differed from the majority of the panel as to the guilt or innocence of the defendant, they might properly waive their convictions and agree with the majority, but they were not bound to do so,” we think the court erred. ^This charge it appears was elicited by the argument of defendant’s counsel to the jury, in which he contended it was the duty of every juror to “ stand out against a majority” if not satisfied himself of defendant’s guilt. It is better to give such arguments free scope in criminal cases, than to meet them with a charge from the bench, which is at all calculated to embarrass the minds of a jury with nice distinctions in respect to their duty. The oath of a juror points out to him his duty plainly; it is, “to render a true verdict according to the evidence.” That the plainest man can understand, and every honest man will fulfil. As to the consultation of the jury room, and the modes of arriving at one mind among twelve men, on a disputed question of fact, or of law and fact, there are no special rules to be laid down. In all cases of difficulty kt them take their oath as a guide; how far each ■man will follow his own understanding of the case, or adopt the understanding of others, is left to himself. There may be nothing in the charge of the court that seriously militates with this view of the subject; still we are inclined to think, that the charge to a jury, that where one or more differed from the majority “they might properly waive their convictions” is such a charge as was calculated to mislead, and that this would not be cured by adding that “they were not bound to do so.”

For this error in the charge of the court, the judgment is reversed and the cause remanded.