WALKER, P. J. —
The indictment charged that the defendant kept, exhibited, or was interested or concerned in keeping or exhibiting a gaming table for gaming. — Code, § 6985. There was evidence tending to prove that the defendant with several others engaged in a game of hazard for money, a small table in a room on the second story of a building being used for the purpose; that the defendant received a “take-out” in this game; that he had been seen in the same room on another occasion; that, when during the game testified about there was a knocking on the locked door at the foot of the stairs leading to the room mentioned, the defendant was the person who went down and opened the door; whereupon a deputy sheriff entered and arrested the participants in the game.
*91Over the defendant’s objection, the prosecution was permitted to exhibit to the jury a large table with figures on it, of a kind that is used in playing a game of chance, which the evidence tended to show was found in the same room when the game above mentioned was interrupted. We are of opinion that this evidence was competent. The presence of such a gambling device in the same room was a circumstance having some tendency to shed light on the import of the conduct of the defendant, which was deposed to. That conduct, considered without reference to its surroundings, might have been regarded as equivocal and as not clearly indicating that the defendant was interested or concerned in keeping or exhibiting a table for gaming; whereas, if it was permitted to be looked at in the. light of the fact that the scene of it was a room in which was kept a table plainly adapted to use for gambling purposes, all reasonable doubt as to its indicating the commission by the defendant of the offense with which he was charged might be removed. " When the contention is that the defendant’s receipt of a toll or pay for gaming conducted on a table in a room over which he appeared to exercise some control' or supervision signified that he kept or exhibited, or was interested, or concerned in keeping or exhibiting, the table for gaming, it is not to be denied that the presence in the same room of another table plainly adapted to gambling purposes may be regarded as a circumstance having some tendency to support the contention and to negative a conclusion that the conduct of the defendant indicated merely his participation in an isolated game of chance rather than that he was interested or concerned in keeping or exhibiting the table for gaming.
The record does not show in what connection the court used in its oral charge, the expression which was *92excepted to: “You are not bound by a preponderance of tbe evidence.” Tbe contrary not appearing, it may be presumed that the statement was made in tbe course of tbe court’s instruction to tbe jury as to tbe evidence required to warrant a conviction. Used in such a-connection, tbe statement may have been an entirely proper one, as a jury is not bound to convict in a criminal case on a mere preponderance of tbe evidence. — Shields v. State, 104 Ala. 35, 42, 16 South. 85, 53 Am. St. Rep. 17. It is not made to appear that tbe expression was one of which tbe defendant properly could complain.
Written charge 2 requested by tbe defendant was properly refused. Under it tbe jury might have disregarded tbe testimony of a witness, if they found that be exhibited ill will or malice against tbe defendant, though they were convinced that tbe witness spoke tbe truth. Besides, it is not tbe province of tbe court to instruct tbe jury as to tbe weight to be given to tbe testimony of a particular witness because of its malice or ill will. — Norwood v. State, 118 Ala. 134, 24 South. 53.
Affirmed.