Ferrell v. City of Opelika

• Decision Date: 11 April 1905
• Citation: 144 Ala. 135,39 So. 249
• Parties: FERRELL v. CITY OF OPELIKA.
• Court: Alabama Supreme Court

39 So. 249

144 Ala. 135

FERRELL v. CITY OF OPELIKA.

Supreme Court of Alabama

April 11, 1905

Appeal from Circuit Court, Lee County; A. A. Evans, Judge.

"To be officially reported."

Edgar Ferrell was convicted of gaming under an ordinance of the city of Opelika, and appeals. Affirmed.

The appellant in this case, Edgar Ferrell, was tried before the recorder of the city of Opelika upon a charge for gaming, and was convicted and fined $40. From the judgment of conviction he appealed to the circuit court of Lee county. In the circuit court, the city of Opelika filed against the defendant the following complaint: "The plaintiff claims of the defendant $50 for the violation by the defendant of an ordinance of said city of Opelika, in words and figures as follows, towit: 'Any person who bets or hazards any money, bank notes, or other thing of value, at any game of cards, dice, or any device or substitute for either, contrary to the laws of the state, within the limits of the district shall, upon conviction thereof, be fined not less than $25 nor more than $100;' and plaintiff avers that during the month of August, 1901, the defendant, contrary to the laws of the state, did bet or hazard money at a game played with cards, at a public place within the limits of the city of Opelika, contrary to the ordinance of the city."

There were motions made to strike the complaint from the file, and also demurrers interposed to the complaint, but under the decision from the present appeal it is unnecessary to set these out in detail. The defendant pleaded the general issue and filed several special pleas, which special pleas were demurred to, but under the present decision it is unnecessary to set out these demurrers at length.

The bill of exceptions contained the several motions to strike which were filed by the defendant. On the trial of the case the city clerk of Opelika testified that he kept the minute book of the proceedings of the city council, and that on the 1st day of May, 1899 there was passed a resolution which provided as follows: "The old city ordinances were adopted until new ones could be passed." The plaintiff then offered in evidence one of said ordinances, which was in words and figures as follows: "Any person who bets or hazards any money, bank notes, or other thing of value, at any game of cards, or dice, or any device or substitute for either, contrary to the laws of the state, within the limits of the district, shall upon conviction thereof be fined not less than twenty-five nor more than one hundred dollars."

The defendant objected to the introduction of said ordinance in evidence upon the following grounds: (1) It had not been promulgated since the new charter was adopted; (2) said city had no authority to pass said ordinance; and (3) said ordinance attempted to prohibit gaming within the limits of the district of Opelika, but did not prohibit the offense charged within the city of Opelika. This motion was overruled, and the defendant duly excepted. The city clerk further testified that said ordinance had been in existence for a number of years.

The plaintiff then introduced several witnesses who testified that a short time before the prosecution in this case, they went to the house of one Alex McCoy about half past 1 o'clock at night; that the house was a private residence within the city of Opelika; that they looked through a window of said residence, and found the defendant and six other persons sitting on the floor playing cards; that they did not see any money or other things of value in their hands or on the floor; that said witnesses were members of the police force of Opelika, and after they had arrested the defendant and the other persons they found on one of the parties 25 cents in money, and one of the witnesses saw a nickel lying on the floor. The plaintiff also introduced other witnesses who testified that on three other occasions they had seen the defendant and other parties playing cards in this same house.

The defendant introduced several witnesses who testified that at the time in question they were playing cards, but there was no betting.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge and separately excepted to the court's refusal to give the same as asked: "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 subsequently played there, such other and prior meetings must have been of such character, and so repeated and continued up to near the time, as to stamp the place with such attributes of publicity as involves the idea that people of the vicinity may go and are likely to go there at will, and may and are likely to go there at will; the idea of a public meeting place for the neighborhood."

There were verdict and judgment in favor of the plaintiff, assessing a fine of $25. From this judgment, the defendant appealed. The first four assignments of error were as follows: (1) The court erred in overruling defendant's motion to quash the proceedings against him, and also erred in overruling each separate ground of said motion. (2) The court erred in overruling defendant's motion to strike this complaint from the file, and also erred in overruling each ground of said motion to strike. (3) The court erred in overruling each of defendant's demurrers to complaint, numbered 1, 2, 3, 4, 5, and 6, respectively. (4) The court erred in sustaining each of plaintiff's demurrers to defendant's pleas, numbered 3, 4, 5, 6, and 7, respectively.

The defendant also assigned as error the rulings of the trial court upon the evidence to which exceptions were reserved, and the refusal of the court to give the charge requested by him.

B. T. Phillips and Houston & Power, for appellant.

Albert E. Barnett, for appellee.

HARALSON J.

1. The ruling and judgment of the court on the motion to strike, and on demurrer to the complaint, should appear in the judgment entry. The bill of exceptions is the proper place to show the circumstances, but the ruling...