Adams v. State

• Decision Date: 05 June 1913
• Citation: 9 Ala.App. 89,64 So. 371
• Parties: ADAMS v. STATE.
• Court: Alabama Court of Appeals

64 So. 371

9 Ala.App. 89

ADAMS v. STATE.

Court of Appeals of Alabama

June 5, 1913

On Application for Rehearing, November 20, 1913

Appeal from City Court of Montgomery; Armstead Brown, Judge.

James Adams was convicted of keeping a gaming table, and appeals. Affirmed.

Charge 2 referred to in the opinion is as follows: "The court charges the jury that if, after a consideration of all the evidence in this case, you believe that the witness Will Jackson exhibited malice or ill will against defendant, then you may disregard his evidence."

L.A Sanderson, of Montgomery, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

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.

Over 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 excepted to: "You are not bound by a preponderance of the evidence." The contrary not appearing, it may be presumed that the statement was made in the course of the court's instruction to the jury as to the evidence required to warrant a conviction. Used in such a connection, the statement may have been an entirely proper one, as a jury is not bound to convict in a criminal case...