Smith v. State , 52 Ala. 384 ( 1875 )

BRICKELL, C. J.

The indictment is in the form prescribed by the Code, charging gaming at the several places prohibited by the statute, disjunctively. Such an indictment does not include more than one offence ; and if the State offers evidence of more than one, the defendant may compel an election of one or the other as the single offence for which he is to be prosecuted. Or if the State offers evidence of a particular act of gaming, at a particular place, so as to identify and individualize it before the minds of the jury, an election to prosecute for that particular act is made, which cannot be subsequently waived, and another and distinct act proved as ground of conviction. Elam v. State, 26 Ala. 48; Cochran v. State, 30 Ala. 542; Hughes v. State, 35 Ala. 351.

No case for an election was presented under the evidence disclosed in the record. The evidence was only of one act of gaming, at a particular place. No attempt was made to prove any other. The first witness introduced, in describing the place at which the gaming occurred, stated that it was in the same building with a retail liquor saloon, but separated from it, and was rented by and under the control of a different person. Some of the evidence was elicited on cross-examination. The defendant insisted the State, by the introduction of this evidence, had elected to proceed for gaming at a storehouse or place where spirituous liquors were sold, and could not subsequently offer evidence that the place of playing was a public house, or a public place. The theory of the principle on which the public prosecutor (when an indictment is so framed as not to designate the particular transaction or act to which it refers, or contains several counts charging the offence to have been committed in different ways) is compelled to elect on what count of the indictment, or the particular transaction or act exhibited in proof, for which he will proceed, is the prevention of prejudice to the defendant, in the eyes of the jury, by bringing against him evidence tending to show crimes for which he is not really indicted, and for which he is not finally to answer; to avoid' building up and supporting a verdict of guilty in a prosecution for one offence, by evidence of defendant’s guilt of another. The principle can have no application when evidence of but a single act or transaction is offered. It is applicable only when evidence is given of different and distinct transactions. Whether the gaming was at a public house, or a public place, or a house where spirituous liquors were sold, was the fact on which the guilt or innocence of the defendant depended. It was the fact which gave the color of criminality to the particular act of gaming. No prejudice could result to the defendant from evidence that it bore the character of all of these places. The dangers of a conviction of one offence by evidence that he had been guilty of another was not involved. No prejudice to him in the eyes of the jury could result, as would have resulted if evidence of his playing at other places had been allowed. He could not be uncertain as to the act of gaming for which a conviction was sought. Therefore no case for compelling an election by the prosecutor was presented. The only result of compelling the prosecutor to state the character he would endeavor to stamp on the place where the gaming occurred, would have been to give the defendant an undue advantage of acquittal, because of the error or mistake of the prosecutor as to the effect of the evidence he would offer. The evidence might prove the place of gaming a public house, or a public place, or a house where spirituous liquors were sold. Under an indictment charging the playing to have been at one of these places, evidence of playing at another could not be received. Not because the playing at the one is a different offence from playing at another, but because there is a variance between the allegation and proof of the manner in which the offence was committed. There is no authority for compelling a prosecutor to an election to prove an offence to have been committed in a particular manner, that a defendant may have an opportunity of claiming an advantage of a variance between the averment and evidence. There was no error in overruling defendant’s motion for an order compelling the prosecutor to elect whether he would seek a conviction because the place of gaming was either a public house, or a public place, or a house where spirituous liquors were retailed. Until evidence was given or offered of different acts of gaming, no case for an election existed.

It is not easy to define what is a “ public house,” or a “ public place,” within the meaning of the statutes against gaming. The evil the statute proposed to suppress was gaming with cards, dice, or any device or substitute for either, under such circumstances as would tend to offend public morals, and to the temptation of the young and unwary into its corrupting practices. The construction given these terms must be. such as will subserve the legislative intent. Any house to which all who may wish can go, night or day, and indulge in gaming in its various forms, is a public place within the meaning of the statute. That its proprietor uses it as a bedroom as well as a gaming room, and that entrance can be gained only by knocking at the door, when it was opened from the inside, does not relieve it from the character of a public place. That character is stamped upon it, when one of the uses to which it is appropriated is gaming, and it is free of access to all who are known to engage in it. All such persons are invited to it by the use to which it is appropriated. It is not necessary the door should have been thrown open, and all persons indiscriminately, or, in the words of the bill of exceptions, the “ general public,” allowed to enter at pleasure. The greater the air of privacy and secrecy which can be given to the place, the more effectual is the lure ; and the place when frequented for the purposes of gaming is within the evil the statute proposes suppressing. It is common to all who would gratify the passion gaming engenders and stimulates, and this is publicity. A lawyer’s office cannot be said to be a place to which the general public, or all persons indiscriminately, are invited, or have a right to go. Nor is the office of a physician such a place. Each are places of business in which each pursues his avocation ; clients are invited to the one, and patients to the other. Each are within the statutory prohibitions, as this court has decided. The house a gambler devotes to gaming, and in which he keeps the appliances of his occupation, open to all who will engage in his sports, no matter with what seeming privacy he may invest it, is a public place within the statute. If it was not, the statute would be illy adapted to the suppression of the evil against which it is directed. The circuit court did not err in refusing the charges requested, and its judgment is affirmed.