McCalman v. State , 96 Ala. 98 ( 1892 )

COLEMAN, J.

Tbe defendant was tried and convicted of tbe offense of gaming. Tbe indictment follows tbe form prescribed by the Code. Tbe statute prohibits tbe playing “at any game with cards or dice, or any device or substitute therefor, at any tavern, inn, storehouse for selling or retailing spirituous, vinous or malt liquors, or a place where spirituous, vinous or malt liquors are retailed, sold or given away, or in a public bouse, highway, or any other public place.” Code, § 4052. Tbe proof showed that one Winters was tbe proprietor of tbe bouse in which tbe playing at cards occurred. Tbe bill of exceptions states that, “in response to a question by tbe State,” tbe witness testified that from tbe time Winters moved there, to July, 1889, “be (Winters) gave me a drink of whiskey several times.” Tbe defendant objected to tbis statement, and moved to exclude it, but tbe court overruled tbe motion. As tbe card-playing took place long after tbis period, we tbink tbe testimony was illegal and irrelevant, and tbe error would work a reversal, but for another principle of law. Tbe bill of exceptions states tliat tbe evidence was in response to a question of tbe State. Tliere seems to have been no objection to tbe question, and a party cannot speculate as to -what tbe answer of a witness may be to an improper question. If tbe answer is not responsive, be may move to exclude it; but where tbe question is illegal, and no objection is interposed, and tbe answer is responsive, tbe party against whom it is offered can not, after it is answered, then object. Tbe law will not permit him to wait until tbe witness answers, and if favorable get tbe benefit of it, and if prejudicial, move to. exclude it.

The court sustained an objection to tbe following question asked a witness by tbe defendant: “Was’nt tbe room spoken of by Bell (a witness previously examined) just a private bed-room?” Tbis question is objectionable, as calling for a mere opinion or conclusion of tbe witness. Tbe ruling of- tbe court can be placed also upon other grounds. Tbe witness Bell referred to, and other witnesses, and also tbe evidence of tbe witness himself, clearly established, and without contradiction, that tbe bouse kept by Winters was a tavern, or inn, within tbe meaning of tbe statute; and tbe evidence shows further, without contradiction, that tbe room in which tbe playing took place was a part of tbe bouse, and was used in connection with tbe business — Russell v. State, 72 Ala. 223; 11 Anner. & Eng. Encye. of Law, p. 6, and note. Tbe witness Bell testified that be, with others, who were mere temporary guests, slept in that room that night, and while in the room, and sitting on tbe bed, saw Winters, tbe proprietor, and tbe defendant playing-cards. Tbis witness further testified: “I know playing-cards, I took them to be ordinary playing-cards.”

Tbe fact that tbis witness also said be did not know tbe different cards, and that they might have been “Author cards,” can exert no influence in the case. He testified be was in tbe room with them, and saw them playing cards. Under tbe evidence, tbe court was authorized to give tbe general affirmative charge, that if tbe jury believed tbe evidence they must find tbe defendant guilty. Tbe following-authorities fully sustain tbe trial court: Russell v. State, 72 Ala. 223; Cochran v. State, 30 Ala. 547; Moore v. State, 30 Ala. 550; Cloud v. State, 6 Ala. 629; Webster’s Unabridged Dictionary, defining Tavern, and Inn.

It is unnecessary to consider tbe charges requested by defendant. These were properly refused, if the court was justified in giving the general charge.

Affirmed.