Downey v. State , 110 Ala. 99 ( 1895 )

HEAD, J.

By statute, card playing at an “out-house where people resort” is a misdemeanor. Thedefendent was tried for this offense.

In Downey v. State, 90 Ala. 644, we defined, as nearly as practicable, ‘ 'an out-house where people resort, ’ ’ as used in this statute, and now refer to what is there said.

The trial court instructed the jury that “it is one where parties may go for the purpose of playing cards, whether they go there once or a dozen times.” There was evidence tending to show that only on one occasion did parties go there for the purpose of playing cards (or for any other purpose), and that they then went there with, and on the invitation of, the owner, who at all times kept the house locked and carried the key, and that no one was present except the participants in the game of cards which was then played — being the game at which the defendent played. If this version of the evidence was the true one, the defendant was not guilty under the authority supra. The charge authorized.a conviction upon such a state of case, and was erroneous. Tliis erroneous definition was not modified by the subsequent statement of the court to the jury that, “If they may resort there and do resort there, then it is an outhouse within the meaning of the statute.” The jury were, notwithstanding this statement, still under instruction that going there one time for the purpose of playing cards, made it a house where people resort.

The written charge given at the request of the State was proper. We do not understand it to declare that the fact that the house was kept locked is not admissible in evidence upon the question whether people resorted there or not.

We think under the evidence in this case it was for the jury to determine whether the house in question wa3 one where people resort, and that charges 1, 2 and 5 requested by defendant invaded the province of the jury.

The third and sixth charges requested by defendant are of a kind often held improper as being argumentative, or giving undue prominence to particular testimony.

The fourth charge might properly have been refused, though we do not say the oral explanation of it given by the court was unobjectionable. They will, probably, not arise again in the same shape.

Reversed and remanded. Let the defendant remain in custody until discharged by law.