Russ v. State , 138 Ala. 1 ( 1902 )

McCLELLAN, C. J.

The complaint charges that the defendant “unlawfully engaged in gaming on Sunday,” etc. The evidence was free from all conflict and affirmative and positive that the defendant on a certain Saturday night played a game of cards, that defendant bet on said game and that it was a game which could not be played without betting. The only conflict in the evidence was as to the time of this gaming; the evidence for the State going to show that though commenced before 12 o’clock that night it was continued beyond that hour and several minutes into Sunday morning when the defendant and those playing and betting with him were surprised and arrested by police officers, while the evidence for the defense went to show that the players were arrested and the game broken up' a few minutes before the hour of twelve. So that the court might well have charged the jury that if they believed the whole evidence as to the playing and’ betting] beyond? a reasonable doubt, and believed further beyond a- reasonable doubt that the gaming occurred after* midnight they should find the defendant guilty. This is putting the case in the most, favorable possible light for the State. The jury were not bound to believe any part of the evidence. They might have believed that a game was played but that it was a game which could be played without gambling upon it, and they might have had a reasonable doubt that defendant did gamble on it. Gaming and not card playing was the offense charged. To establish it, the betting had to be proved beyond a reasonable doubt, as well as the card playing when a betting on a game of cards is relied on. It should have been left open to the jury to find the truth as to the betting dissociated with their finding as to the card playing. This was not done in the charge of the court, but the contrary. The jury were required to convict on the card playing whether there was any betting or not. A part of the court’s oral charge bearing upon this point is in the following language: “If you fine1 from the evidence beyond a reasonable doubt that the defendant played cards on Sunday, and that it was in this county, and within twelve months before the commencement of this prosecution, then you must find the defendant guilty.” To this an exception was reserved. Tbe other part of the oral charge set out in the bill of exceptions to relieve this, does not do so, since it is of no consequence that' the jury should find that the defendani pláyed at the game of cards testified to in the case unless they should also find that he bet at that game, and the fact that one of the witnesses testified that the game being played could not be played without betting on it, did not conclude the jury in that particular. The instruction was erroneous. We cannot see that it did not prejudice the defendant, though, of course, it is to .the last degree probable that it did not. The judgment must be reversed on account of it.

The other exceptions reserved are without merit.

Reversed and remanded.