Bryan v. State , 26 Ala. 65 ( 1855 )

GOLDTH WAITE, J.

— The only question presented by the record arises upon the action of the court on the demurrer to the evidence. The object of a demurrer to evidence is not, as has sometimes been supposed, to substitute the judge in the place of the jury as a trier of the facts ; for, if that was the case, it would destroy one of the chief characteristics of the common law; which separated, by a clear and distinct line, the duties of the judge and jury, — giving to the one the determination of the facts, and confining the other to questions of law. The office of a demurrer to evidence is precisely the same as a demurrer to the pleading : each is intended for the purpose of ascertaining the law upon a particular state of the facts, but the proceedings are necessarily different. In the one case, the facts are alleged in writing in the pleading ; in the other, the evidence is submitted to the jury, and if it does not tend to establish the issue, the objection goes to its admissibility. If admissible, the jury are the sole judges of the weight to be given it, and they, and they alone, are to determine how far it conduces to the proof of the facts. If the defendant believes that the facts which the evidence conduces to prove would not be sufficient to maintain the action in a civil case, or make out the offence in a criminal prosecution, he may call upon the court to declare the law upon the facts, and this he does by a demurrer to the evidence. If, however, the evidence is loose, uncertain, contradictory, or circumstantial, he cannot call upon the court to draw the inferences, or to determine how far it goes to establish the fact: these are matters for the jury. If he wishes, therefore, in a case of that kind, to submit the law to the court, he must admit every fact which the testimony tends to prove, and this is the effect of the demurrer if issue is joined. This is the whole theory of the demurrer to evidence, and hence wo held in Young v. Foster, 7 Porter 420, that the court does not in that proceeding stand in the place of a jury to render such judgment as the jury ought to have done, but to render such judgment as the jury from the evidence could have rendered ; and this principle is re-affirmed in Carson v. The Bank, 4 Ala. 148; see, also, Duerhagen v. United States Insurance Co., 2 S. & R. 185; Maus v. Montgomery, 11 ib. 329.

Applying this principle to the case before us, there is no difficulty. The record shows that every ingredient in the offence charged was clearly established, except the fact as to whether the game was played with a substitute or device for cards ; and under the rule we have adverted to, if there was any evidence tending to prove that fact, on demurrer we are bound to consider the fact established. The record discloses, that the game, although played with dominoes, could as well be played with cards, — that the dominoes are shuffled, a trump is made, and the players must follow suit if they can, and if not, arc allowed to trump,- — tricks are taken, and points made. Here, then, wo have a game which can be played with cards, and is played on the same principles which govern some games in cards, and in which the same cant phrases and terms are made use of. We cannot say with positive certainty, upon this evidence, that the dominoes were used by the appellant as a device or substitute for cards, but we arc very clear that the evidence we have stated tends to establish that fact, and there was for that reason no error in the judgment of the court.

Judgment affirmed.