Bass v. State , 37 Ala. 469 ( 1861 )

R. W. WALKER, J.

The test, by which to detei'ihih'e whether a witness, who has 'been introduced by the' State, is an accomplice within the meaning of section 3600 of the Code, is the inquiry, could the witness himself have beeh-indicted for the offense, either as principal or accessory ? See Davidson v. State, 33 Ala. 350 ; Bouvier’s Dict., “Accomplice.” Under ''-the act of February 17, 1854, (Acts 53-4, p. 30,) as amended by the act of February 8, 1858, (Acts ’57-8,'p. 267,) itls the betting at ten-pins, and not merely playing the game, that constitutes the offense. As •the witness did not bet, and was not Concerned in the bets t-made by others who 'took part-in the game, he could not have been indicted; and, 'therefore, was"not an accomplice.

[2.] The objection,'that the record fails to'show that i-tbe grand jury was regularly sllected and summoned,-cannot be made for tbe firsttime in this court. — Code, § 3591; Shaw v. State, 18 Ala. 549; Nugent v. State, 19 Ala. 540 ; Floyd v. State, 30 Ala. 511; Russell v. State, 33 Ala. 366.

[3.] It is not necessary to constitute the offense of bet<ting at ten-pins, that the playing should take place at one of the places enumerated in section 3243 of the Code. -Hence, the objection to the indictment was-not well taken.

► Ju dgment- affirmed.