Russ v. State , 132 Ala. 20 ( 1902 )

McCLELLAN, C. J.

— The complaint on which ap-

pellant was tried charges no more than this, that the defendant, Will Knss, 'about September 12th, 1899, played- at- a game of cards or dice, “at a place in a pasture made public by meeting for the purpose of playing at a game with cards or dice.” This is neither a charge in terms that the place was a public place, nor the averment of facts which necessarily constituted the place a public place within the language of the statute. A pasture is not a public place per se, nor does the fact that there was at the time of the alleged offense a meeting of two or more persons in a pasture for the purpose of playing at a game of cards or dice, nor the facts of 'such meeting on that occasion and of another such meeting there on a former occasion malee it a public place necessarily and as matter of law. For the meeting of persons in an abstractly private place of the character of place involved here for the purpose of gam-ingt-o convert such place into a public place for the occasion, the meeting must- be attended in such numbers and by such circumstances oí publicity as imply a right and privilege, and opportunity on the pari, of the people generally in the vicinity to attend. For other and- prior meetings at an otherwise private place such as this to have the effect of converting it into a public place in respect of a game of 'card® subsequently played there, such other and prior meetings must have been of such character and so repeated and continued up to near the time óf the subsequent playing counted on as to stamp the place with' such attributes of publicity as involves the idea that people of the vicinage may and are likely to go. there at wild — the idea of a meeting place for the neighborhood. Within these principles, the complaint alleges no such meeting at the time of the gaming counted on as constitutes the place a public one for that occasion nor any such prior meeting® there as impressed the character of publicity on the place irrespective of the character of the meeting at tlie time of the gaming charged against the defendant. The facts averred in the 'Complaint, therefore, fail to support the conclusion of the affiant therein stated that the place was “made public,” etc., etc. The demurrer to the complaint should have been sustained.

The testimony supposed to have a tendency to. prove the charge against the ‘defendant offered on the trial was that of the witness J. H. McClure as follows, that about the 12th of September, 1899, he saw the defendant engaged in a game of cards, “that the place where lie saw the defendant in a game of cards was in a strip of woods in his [witness’] father’s pasture, and was about one mile from any public road, near a gully and was not near any public place at all, that he had seen negroes playing cards near this same spot on one occasion before this, and that he had seen several times negroes going down in the direction of the strip of woods in his father’s pasture, and that the strip of woods was about a quarter of a mile in length.” Recurring to the principles declared above in respect of what is necessary to convert such a private place as this into a public place and applying them to the evidence, the conclusion must be that taking the facts as stated and allowing for all legitimate inferences that may be drawn from them, they fail to show or authorize the jury to conclude that the place where defendant played the game of cards was a public place within the terms of the statute. ' The criminal court should, therefore, have given the 'affirmative charge requested by the defendant.

Reversed and remanded.