Johnson v. State

• Decision Date: 11 June 1903
• Citation: 137 Ala. 101,34 So. 1018
• Parties: JOHNSON v. STATE. [a1]
• Court: Alabama Supreme Court

34 So. 1018

137 Ala. 101

JOHNSON v. STATE. ^[a1]

Supreme Court of Alabama

June 11, 1903

Appeal from Circuit Court, Fayette County; S. H. Sprott, Judge.

Tom Johnson was convicted of carrying on a lottery, and he appeals. Affirmed.

The witness for the state testified that the defendant was the proprietor and owner of a saloon in the town of Fayette Ala.; that he had been in the defendant's place of business frequently before the finding of the indictment in this case, and had played on the machine owned by the defendant and kept on the counter of his bar, and had seen others play on said machine. The machine was described by said witness substantially as follows: It was a machine with a wheel on the side, which revolved around a stationary arrow. On the disk or outer rim of said revolving wheel there were separate and divided colors of different shades. These separate colors represented different values. One color represented 10 cents, one 25 cents, one 50 cents, and one $1. These colors were black, red, yellow, etc. At the top of the machine are four separate slots or places where those who wish to play the machine are required to deposit a nickel or five cents. After depositing the nickel in the slot or place provided therefor, the person playing the machine was required to state on which color they played. After so stating, they would give the wheel with the colors marked on it a whirl or turn, and if, when the wheel stopped, the stationary arrow pointed to the color the person playing the wheel had chosen, then said person won whatever that color was valued at, and received the money accordingly. If, when the wheel stopped, the arrow was not pointing to the color chosen by the person playing the machine, he lost, and received nothing. The witness further testified that he had seen persons win and lose on the machine, and had lost and won in playing it himself. On the cross-examination of this witness he was asked whether or not the machine was openly exhibited on the counter in the defendant's place of business. The state objected to this question on the ground that it called for illegal, irrelevant, and immaterial evidence. The court sustained the objection, and to this ruling of the court the defendant duly excepted. The defendant then asked said witness several questions as to whether or not he had ever heard the defendant solicit people to play on the machine, or had ever known of the town authorities asking or requesting the defendant to stop operating said machine. To each of said questions the state objected. The court sustained such objections, and to each of such rulings the defendant separately excepted. The defendant, as a witness in his own behalf, testified that he had operated such a machine as was described by the state's witness. The defendant, as a witness in his own behalf, was asked whether or not he had a license issued to him by the judge of probate permitting him to operate said machine. The state objected to this question. The court sustained its objection, and the defendant duly excepted. The defendant offered to introduce in evidence the license which he had procured for operating said machine. The state objected to the introduction of said license. The court sustained the objection, and the defendant duly excepted. The court, at the request of the state, gave to the jury the following written charge: "If the jury believe the evidence in this case beyond a reasonable doubt, they will find the defendant guilty as charged in the first count of the indictment."

McClellan C.J., dissenting.

James J. Ray and Davis & Gray, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The indictment in this case contained three counts. The first charged that the defendant "set up or was concerned in setting up or carrying on a lottery"; the second count charged that the defendant "set up or carried on, or was concerned in setting up or carrying on, a lottery, or device for a lottery, or sold or was interested in selling tickets or shares in a lottery; and the third count charged that the defendant "set up or carried on or operated a lottery, to wit, a slot machine," etc. Before entering upon the trial, the...