Thompson v. State , 99 Ala. 173 ( 1892 )

HARALSON, J.

1. Before the Code of 1886, went into effect, we held, that it was necessary to aver in the indictment, that the game at which the betting was alleged to have been done was played. Smith v. The State, 63 Ala. 55; Johnson v. The State, 75 Ala. 7; Dreyfus v. The State, 83 Ala. 54; Tolbert v. The State, 87 Ala. 27. The present Code, under which this indictment appears, prescribes a form which had not before existed. The indictment in this case follows this form strictly, and is in all respects sufficient.—Rosson v. The State, 92 Ala. 77; Darby v. The State, in Mss.

2. The witness, Carter, for the State testified, that he saw the defendant bet at a game called “craps,” at the dwelling-house of Edmund Stegars, on the last Monday before Christmas in 1891, and that there were several other persons there who played the same game and bet on it. The sólicitor then asked the witness, whether the other persons there that day played at the same game and bet on it. This question ' asked the witness to state again, the same thing which he had just stated, without objection on the part of defendant. The defendant objected to the question, on the ground that it was illegal and irrelevant, in that, whether other persons played or bet in the game then played was no evidence that the defendant bet or played. The question and answer were allowed, and the court committed no error therein. There could be no conviction as charged without betting, and there could be no betting without playing, and some one or more persons with whom to play and bet. The defendant could not play or bet with himself. It was necessary, therefore, to show these facts with others in order to show defendant’s guilt.

3. The solicitor, on the examination of the witness, was proceeding to read from a memorandum of the witness’ testimony before the grand jury, when an objection to his doing so was made by defendant, and sustained by the court. The bill of exceptions states, that “the solicitor was then permitted to ask questions from the memorandum to refresh the witness as to his testimony before the grand jury, and the defendant duly excepted.” In what manner the solicitor asked questions from the memorandum, for the purpose stated, and in what the objection to his doing so consisted, does not appear. A witness may refresh his memory by a memorandum made at or about the time to which it relates, when he knows it to be correct, and after refreshing his memory, can testify from independent recollection.—Stoudenmire v. Harper, 81 Ala. 242; Acklen v. Hickman, 63 Ala. 494. And a party may, for the purpose of refreshing the memory of his own witness, when put to a disadvantage by an unexpected answer, or when the witness fails to answer as was expected of him, ask him if he had not, at a certain time and place, made certain statements, even if they are inconsistent with his testimony just given.— White v. The State, 87 Ala. 24; Griffith v. The State, 90 Ala. 583. The witness had just stated, that he did not remember how many times he had been to Edmund Stegars’ house,. within twelve months before he saw defendant play and bet, and had seen “craps” played there ; but, after ■ the questions propounded by the solicitor, from the memorandum referred to, he stated, that his memory was refreshed, and he had seen craps played at said Stegars’ house as many as four or five times within the time specified. There was no error in allowing the witness to be refreshed in his memory in the manner objected to. Billingslea v. The State, 85 Ala. 325.

4. There was no error in refusing to give charge No. 2, asked by defendant. It was argumentative and abstract, and, if not otherwise vicious, was properly refused on these grounds. The witness, Carter, testified, “that he had seen craps played at Stegars’ house as many as four or five times during the twelve months prior to the game in which the defendant was charged to have played; and witness, Wiley, for the State, testified, “that he had seen dice or craps played there as many as three or four times, during the twelve months preceding the game above mentioned, but that he did not have any recollection of seeing more than one or two games played there, during a period of about six months next before the game above mentioned,” for. betting at which, defendant was being tided. The charge is predicated, not upon the belief of the tendencies of this evidence; but it is based on what the evidence shows or fails to show, without reference to the jury’s belief of the evidence.

5. The defendant asked the court to give the general charge, which was properly refused. The ground on which this charge was requested is based on the supposed absence of proof showing that the defendant bet any money, banknotes, or other thing of value. This was necessary to have been shown, to the satisfaction of the jury.—Chambers v. The State, 77 Ala. 80; Dreyfus v. The State, 83 Ala. 54. The first of the witnesses examined proved the playing and betting by defendant, but he does not state what he bet. The other witness stated, that on the day he saw defendant at Stegars’ house, — the occasion selected -by the State,— there were a good many there, engaged in crap-shooting; “that when they would shoot craps, they would all get in a circle or ring, and get down on their knees, and put the money up and throw the dice. He saw defendant down on his knees, but did not recollect, positively, that he saw him put any money up, or shoot the dice, but that his best recollection was, that he did play.” This evidence afforded ground for inference, and tended to show'that the defendant did bet money at the game played.

6. The evidence in the cause tended to show that the dwelling-house of Stegars, where the game was played, was a public house in the meaning of the statute, and was proper for the consideration of the jury.—Downey v. The State, 90 Ala. 644: Jacobson v. The State, 55 Ala. 151; Coleman v. The State, 20 Ala, 30.

Affirmed.