Cochran v. State , 30 Ala. 542 ( 1857 )

RICE, C. J.

Prior to the adoption of the Code, it was a rule, that an indictment, charging aman disjunctively, was bad. The reason was, that such indictment mentioned distinct offences, and did not show of which of them the indietors accused the defendant, — 2 Hawk. ch..25, § 58 ; 1 Waterman’s Archb. Or. Pl. 91.

1 As to the gaming treated as indictable by section 8243 of the Oode, the above mentioned rule is abolished by the Code ;:and a form of indictment is given, which charges a man disjunctively. — Appendix to the Oode, page 507, No. -60. Section 3503 of the Oode expressly sanctions the manner of stating the act constituting-the offense, as set forth in that form; and it gives a like sanction to the other forms given in the Appendix, in all cases where 'they are applicable.’ The sufficiency of those forms,, in the cases for which they were designed, has been deliberately asserted by our predecessors, and is not now considered an'open question. — Noles v. The State, 24, Ala. 672; Elam v. The State, 25 Ala. 53.

: -'-'The plaintiff in error contends,' that the indictment • in this case is not in the form given in the Code for offenses -under section 3243, and that it is-therefore bad. The only difference pointed out by-him, or pereeived by us, is, that the-indictment charges the playing to have been “at a game of cards or dice,” and the form charges the playing to have been “at a game wii/i cards or dice.” But that difference is immaterial,- because it is-a mere difference in'words, without any difference-in meaning.' — Co.de, § 3518.' A-game of cards is necessarily a game with cards, and a garpe of> dice is necessarily a game with dice. Our conclusion,1 therefore^-is-, that the indictmenksubstantially states, the act constituting the: offense-in the.-manner indicated‘by the form-given, and is sufficient. — Oode, §3518. •■■ ■ , » ■ 1 u -

Such an indictment, however, does not include more than one offense; and conceding that the State may elect under ir, for which particular offense it will proceed, yet it cannot under it elect to proceed for two distinct offenses. Elam v. The State, 26 Ala. 48. In allowing'the-State to proceed under the indictment’in ;this case, for two offenses, the court below erred: ’ -V

-■ - Under “Such-indictment^ the election ófthe Státe-is made by introducing evidence of any act charged in it; and after introducing evidence oí any such act, - the State cannot give evidence of any other act charged.; — Elam v. The State, 26 Ala. 48; 2 Greenlf. on Ev. § 86 ; Stante v. Prickett, 1 Camp. 478 ; Grillon v. Wilson, 3 Monr. 217. “If the prosecuting officer deems it for the interest of the State that evidence as to different offenses should be offered, he must frame the indictment accordingly; which is in every case very easily done.” — Elam v. The State, 26 Ala. 48. But, under the indictment in this case, the court below erred in admitting the evidence as to the playing in the bed-room of the defendant’s shop, afterthe State had introduced evidence as to the playing in the room over the barber’s shop.

As the cause must, for the errors above pointed out,.be remanded, we deem it proper to say, that if all the evidence set forth in the bill of ■ exceptions is believed, the room over the barber’s shop, in which the playing occurred, is a public house within the meaning of section 3248 of the Code, and the defendant is guilty as charged.. As the house consisted of four rooms, two below, and ■ two above, the two rooms below constituting the barber’s shop, and as all the rooms were under the control of .the same person, (the barber,) the house is, prima facie, an entirety; and the barber’s shop being a public house, and clearly within the prohibition of said last mentioned section, the upper rooms are, prima facie, within the prohibition. The presumption of entirety is not overthrown, by evidence, of mere non-user by the proprietor’, of the room.in which,the playing occurred, nor by his putting and keeping dague'r-rean materials in it, nor by any other evidence in this case. If that presumption could be overthrown by proof of non-user of such a room by the proprietor, we should likely see a very decided increase of unoccupied rooms in many localities. Citizens would cease to have any respect for a law which could be rendered inoperative by such flimsy evasions. The courts could- scarcely be deemedin earliest, if they were to hold that a house loses'its public character by the putting or keeping in it a.fewdaguerrean materials. — See Huffman v. The State, 29 Ala. 40; same case, at tbe present term; Arnold v. The State, 29 Ala. 46.

Tbe views above expressed render it unnecessary to notice tbe exception arising out of tbe offer of tbe plaintiff in error to prove that there was no evidence before tbe grand jury wbo found tbe indictment, except evidence as to the playing in tbe room over tbe barber’s shop. And therefore we decide nothing as to that exception.

For tbe errors above mentioned, tbe judgment of tbe court below is reversed, and tbe cause remanded.