Brannon v. State , 12 Ala. App. 189 ( 1914 )

PELHAM, P. J.

-The fourth count of the indictment upon which the defendant was convicted is in the following language: “The grand jury of said county further charge that, before the finding of this indictment, Jim Brannon was a keeper, proprietor, or employee of a gambling house, against the peace and dignity of the state of Alabama.”

It Avill be seen that this count was framed as coming within the eleventh of the 13 classes of persons enumerated by the statute in its classification or description of persons who shall be deemed to be vagrants. — Code, §' 7843, subd. 11.

If the Legislature can make an act of abandonment and failure and inability to contribute to the support of the family vagrancy (Boulo v. State, 49 Ala. 22), or the keeping of a house of ill fame or a common prostitute without honest means of maintenance (Ex parte Birchfield, 52 Ala. 377), there would seem to be no good reason for holding that it could not define kindred acts leading to similar nuisances and evils, sucb as keeping a gambling bouse, or professional gambling, or begging, as vagrancy. It is witbin tbe power of tbe Legislature to define and deem those classes of persons wbo engage in an unlawful calling, as gambling, to be vagrants. —Shreveport v. Bowen, 116 La. 522, 40 South. 859; Johnson v. State, 28 Tex. App. 562, 13 S. W. 1005. Statutes which have classed professional gamblers and others of that class as vagrants have always been upheld. — 39 Cyc. Ill, and authorities cited in note 19.

It did not vitiate the indictment that in separate counts it joined charges under different subdivisions of the section defining vagrancy. The sufficiency of the count upon which the conviction was had was not attacked by demurrer, or otherwise, in the trial court. Issue was taken on it without objection. It was a good count, charging the offense created by the statute in the words of the statute defining it (Traylor v. State, 100 Ala. 142, 14 South. 634; Jordan v. State, 5 Ala. App. 229, 59 South. 710, and cases there cited), and would not have been affected had there been a nol. pros, as to the other counts (Wooster v. State, 55 Ala. 217), or if, as in this case, the court gave the general charge as to certain of the other counts. It is true one of the counts on which the court gave the general charge is in the general form for vagrancy prescribed by the Code, but that would not affect the fourth count, which was a good count more specifically designating and particularizing the charge'against the defendant and informing him of the exact subdivision of the statute enumerating the classes of persons described as vagrants, under which he was being prosecuted. Of course the defendant could have been prosecuted and convicted of vagrancy under the count charging the defendant, with vagrancy in the general form laid down in the statute, and it could even be said that the court assumed an inconsistent attitude in giving the general charge as to this count and submitting the fourth count to the jury. But this action of the court was invited at the instance of the defendant by a request in writing, and he cannot thus invite action of the court favorable to himself, _though erroneous, and then complain of it as prejudicial and take advantage of the ruling of the court in the defendant’s favor, made at the defendant’s request, and make it a basis for a contention that the court’s ruling constitutes reversible .error as against the defendant. A defendant cannot be heard to complain at the action of the court which was superinduced by him.—Lucas v. State, 144 Ala. 63, 39 South. 821, 3 L. R. A. (N. S.) 412. The action,' though erroneous, is not available to the party invoking it.—W. U. Tel. Co. v. Griffith, 161 Ala. 241, 50 South. 91.

As we read the evidence set out in the bill of exceptions, counsel for appellant are mistaken in the assertion contained in brief and argument that “there was not the slightest evidence of proprietorship or employment in any of the gambling houses referred to.” The state’s witness Dailey testified that he “understood” that the defendant, Brannon, was interested in the Sar-atoga Hotel “while the same was -in operation,” and was one of the proprietors of the hotel. There is ample evidence to support a finding that this hotel, “while in operation,” was being operated as, and in connection with, a gambling house. The state’s witness Eagan testified on cross-examination by defendant’s counsel that he (witness) knew that the defendant was “interested in” the Saratoga Hotel and in the Burton Hotel. The defendant himself testified that he was at one time one •of the proprietors of the Saratoga Hotel, and also had “acquired an interest in the Burton Hotel Company,” and that on one occasion he had been arrested for gaming in the Saratoga Hotel. There was abundant evidence affording an inference that these hotels were run as gambling houses, frequented by men known as gamblers, and that the defendant was a frequenter of these and other resorts reputed to be gambling places. There was no evidence introduced having a tendency to show to the contrary, or that these resorts or hotels were operated in the interests of a legitimate hotel or other business. It seems to us. that the evidence afforded a basis for an inference, as found by the jury, that the defendant was a keeper, proprietor, or employee of a gambling house.

No reversible error is shown by the record.

Affirmed.