Pickens v. State , 100 Ala. 127 ( 1893 )

STONE, C. J.

This prosecution is based on section 4052 of the Code of 1886, and the complaint is framed according to form 23. The statute makes it a misdemeanor to “play at any game with cards or dice, or any device or substitute therefor,” at any one of several enumerated places, and then adds, “or in any other public place.” The effect of these words, other public place, in the connection in which they are used, is to declare that all the designated places which precede that clause are per se, public. The concluding designation—“out-house, where people resort,” is not per se, a public house or place. It is brought within the statute by the fact that people resort there. But, to come within this provision, it must be an out-house. “By the phrase, ‘outhouse where people resort,’ in the act to suppress gaming, is meant any house standing out and apart from houses used as dwellings, or business houses.”'— Wheelock v. State, 15 Tex. 260; 17 Amer. & Eng. Encyc. of Law, 291-2. Even if it be shown that people are in the habit of resorting to a residence or business house, that does not constitute it an “outhouse where people resort,” for the obvious reason that it is not an out-house.

The bill of exceptions recites that it contains all the evidence given on the trial. It tends to show the playing took place in a house which does not; in terms, fall within any of the specifications of the statute, section 4052. Charges 2 and 4 asked by defendant ought to have been given.

It must be borne in mind that the charge under which defendant was tried was for playing at a game with cards or dice, under section 4052 of the Code, and not for betting, under section 4057. See Johnson v. State, 75 Ala. 7; Dreyfus v. State, 83 Ala. 54; Tolbert v. State, 87 Ala. 27; Rosson v. State, 92 Ala. 76.

Reversed and remanded.