Burdine v. State , 25 Ala. 60 ( 1854 )

GOLDTHWAITB, J. —

The form of the indictment is in accordance with section 3506 of the Code, which provides, that where offences are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count, in the alternative. The objection to this provision, urged on the part of the appellant, is, that it is in violation of the tenth section of the first article of our bill of rights, which entitles the accused to be informed of the nature and cause of the accusation, and to have a copy thereof. The object of this clause of the constitution was, to enable every person, against whom a criminal prosecution was instituted, to defend himself against it if innocent ; and a due regard to the intent and spirit of this provision would require us to pronounce against any indictment, whatever might be its form, which was obviously insufficient to secure this result. But the fact that the defendant may be charged with the commission of one or the , other of two or more offences, which are specified with legal certainty in the indictment, does not render him the less able to defend himself against either of the charges which are alleged. It is true, that he may be required to meet each one of the offences; but he would have been obliged to do this, if the indictment, instead of pursuing the form used, had been framed with different counts, alleging the commission of all the offences which are here charged in the same count. We do not think that any constitutional right of the defendant can be impaired by sustaining the indictment in its present form. — Noles v. The State, at the present term (24 Ala. 672.)

Note by the Eeposter. — The case of Sanders v. The State, also from Pickens Circuit Court, was reversed and remanded on the authority of Burdine’s case ; the playing in each case having taken place in the same room, and under the same circumstances.

As to the charge of the court: The evidence established, that the playing took place in the night time, during the sess-' ion of the Circuit Court, in a lawyer's office, and by permission of a person who occupied the room as a sleeping apartment; that the doors were locked, and the curtains drawn over the windows. The court charged, that this was a public place, and, as we think, erroneously. We held in Clark v. The State, 12 Ala. 492, that the office of a physician, where the playing was at night by invitation, was not a public place within the meaning of the statute against gaming; and there is no difference, in principle, that we can discover, between the two cases.

Let the judgment be reversed, and the cause remanded.