Swallow v. State , 22 Ala. 20 ( 1853 )

PHELAN, J.

The errors assigned upon the demurrers to the indictment and the motion in arrest of judgment, are the same that are considered in the case of Ward v. The State, at the present term of the court. In that case, the indictment was held to be sufficient, and the motion in arrest of judgment to be properly overruled. We hold the same in reference to the same points presented here, and simply refer to that decision for the grounds upon which the decision is placed.

Tbe court was asked by the'defendants’ counsel to .instruct the jury,.that the staking of checks by the defendants, in the manner described, was not conclusive evidence of their having bet at faro. Admit that it was not conclusive evidence : such evidence was not necessary. Proof prima facie is always sufficient, and will authorize a conviction unless rebutted. It becomes conclusive in its consequences, although we may not be authorized strictly to call the evidence which is offered conclusive evidence, that is, such, properly speaking, as admits of no contradiction by opposing evidence from the opposite party.

It was not pretended on the other side that this was conclusive evidence, and therefore it was not proper for the court to make a serious business of instructing the jury, at the instance of the defendants, that it was not. The court is not bound to annunciate a proposition of law, at the instance of a party, merely because it is abstractly correct, when to do so would rather tend to divert the minds of the jury from the real questions at issue, than serve to enlighten them upon those questions. Had the court given this charge as requested, it would have been bound, in order to prevent it from misleading the jury, to go on and explain to them that conclusive evidence, strictly so called, was not necessary in the case, and that evidence prima facie, such as that produced, until rebutted, was sufficient proof that the checks staked represented money or value, and therefore made the act of betting complete. It is a rule now well settled, that when the charge as asked needs to be qualified or explained, to prevent it from misleading the jury, it may be refused. Ross v. Ross, 21 Ala.

There is no error in the record, and the judgment below is affirmed.