Wickard v. State , 109 Ala. 45 ( 1895 )

HEAD, J.

The indictment is sufficient. — Code. §§ 4052,4057; Rosson v. State, 92 Ala. 76.

The challenge for cause of the named jurors who sat upon the trial of Robert Oliver, who had been tried and convicted of playing and betting at the same house, and within the same period, at which defendant is charged to have committed the like offense, ought to have been sustained, on proof of the fact upon which they were based. The court held the grounds insufficient in law, and overruled the challenges. They come within the principle, on the point involved, of Smith v. State, 55 Ala. 1. See also Dothard v. State, 72 Ala. 541; Carr v. State, 104 Ala. 4.

When the State introduced evidence to show that the defendant played at a game of cards, and bet money thereat, at Neil Burns’ house, on a Saturday in December, 1891, it thereby elected to prosecute for that offense, and it was not competent thereafter to introduce evidence of other and distinct offenses, comprehended within the indictment, committed by the defendant, at the same or other places. — Smith v. State, 52 Ala. 384. It was, of course, competent for the State t-o prove, in any legitimate way, the public character of the house, if it possessed that character; and, to that end, may have proved that it was a house commonly resorted to for the purpose of card or dice playing and betting by any or all who were disposed to go there ; but the particular offenses of the defendant in playing and betting there cannot be individualized and put before the j ury, in thé manner-done in this case, without injuring the defendant, under the principle of the above cited authority.

For the errors mentioned the judgment is reversed and the cause remanded. Let the defendant remain in custody until legally discharged.

Reversed and remanded.