Tolbert v. State , 87 Ala. 27 ( 1888 )

STONE, C. J.

The indictment in this case is defective, and will not support the conviction. To constitute a good indictment for the offense attempted to be charged in this case, it must be averred that a game toas played “with cards or dice,” or a substitute therefor, at one of the places mentioned in the statute, and that the defendant did bet at such game. — Code of 1886, §§ 4052, 4057; Jacobson v. State, 55 Ala. 151; Mitchell v. State, Ib. 160; Collins v. State, 70 Ala. 19. The indictment in the present case is not spe cific enough. While it avers that the game on which the bet was made was one played with cards or dice, or some device or substitute for either cards or dice, it fails to aver that the game on which the bet was made was in fact played. This precise question was so ruled in Dreyfus v. State, 83 Ala. 54, and in Johnson v. State, 75 Ala. 7; also, Smith v. State, 63 Ala. 55.

Several objections were made and sustained, to questions' propounded to witnesses; but it is not shown what answers the witnesses were expected to give, nor, indeed, that they could have given any information on the subjects inquired about, affecting the defendant. We can not consider these objections. — 3 Brick. Dig. 444, §§ 577 to 579. Conversations tending to implicate the defendant, had when he was not present, should not have been received; and if they did not relate to the case on trial, they were irrelevant, and inadmissible on that account. The character of the house, whether public or private, was an issue in the cause, and legitimate evidence — not a general opinion or conclusion of the witness — was competent to prove whether the house fell within one of the classes in which gaming is prohibited. This question, however, must be treated on the prima facie intendment that a house is an entirety, or unit. — Huffman, v. State, 29 Ala. 46; Moore v. State, 30 Ala. 550; Russell v. State, 72 Ala. 222.

We do not feel at liberty to declare that a trial court, in sentencing to hard labor for non-payment of costs, commits a reversible error, by failing to ascertain and insert in the judgment tbe sum of tbe costs for wbicb additional labor is imposed. Tbe sentence Gan not extend to all costs tbat may bave been incurred. Tbe classes of costs for which tbe convicted offender may be sentenced to perform bard labor, are defined in Bradley v. State, 69 Ala. 318. In passing sentence, tbe trial court would avert uncertainty and possible expense, by either expressing tbe amount of costs tbe defendant is sentenced to pay with bis labor, or by giving such directions as to tbe classes of costs be is liable to so pay, or, what is the same thing, by expressing tbe classes of costs tbat are not to be computed in fixing tbe amount, for tbe payment of wbicb be is sentenced to perform additional bard labor.

Reversed and remanded.