Martin v. State

• Citation: 2 Ala.App. 175,56 So. 64
• Parties: MARTIN v. STATE.
• Decision Date: 03 May 1911
• Court: Alabama Court of Appeals

56 So. 64

2 Ala.App. 175

MARTIN v. STATE.

Court of Appeals of Alabama

May 3, 1911

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

Reese Martin was convicted of keeping a gaming table, and he appeals. Reversed and remanded.

L. A Sanderson and Hill, Hill & Whiting, for appellant.

R. C Brickell, Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was tried on an indictment, framed under section 6985 of the Code of 1907, charging him with "keeping exhibiting, or being concerned in keeping or exhibiting a gaming table for gaming," was convicted, and sentenced to the penitentiary for six months.

1. The legal evidence in the case, as contained in the bill of exceptions, if believed, showed beyond a reasonable doubt that the room in which the table is alleged to have been kept was, at some time during the month of December before the finding of the indictment, a gambling place, and, as the use of the table about which the witnesses testified for gambling was inseparably connected with the place in which it was kept, we have no hesitancy in saying that the legal evidence in the case showed, beyond a reasonable doubt, if believed that the table was a gambling table kept for gaming during that period. It seems from the state's witnesses and from the testimony of the defendant himself that the game was played with dice, that it was a gambling game, played on a table, and, while there is some conflict in the testimony as to whether the table was marked or figured, there was, under the undisputed evidence, a table there, kept by some one, for gambling purposes, and this rendered it a gaming table kept for gaming. Any table kept and used for gaming has been held by the Supreme Court to be a table for gaming within the meaning of the statute. The main inquiry for the court and jury has reference to the use for which the table was kept or exhibited, for it is the use that characterizes its criminality. Toney v. State, 61 Ala. 1; Wren v. State, 70 Ala. 1; Bibb v. State, 83 Ala. 84, 3 So. 711; Huttenstein's Case, 37 Ala. 157; Dixon's Case, 76 Ala. 89; Smith v. State, 22 Ala. 54; 1 Mayfield's Dig. pp. 377, 378, § 182.

It follows, therefore, that the only true inquiry in this case, under the evidence presented by the bill of exceptions, before the jury on the trial in the court below, was whether or not the evidence showed, beyond a reasonable doubt, that the defendant "kept, exhibited, or was concerned in keeping or exhibiting" the table during the period covered by the testimony.

2. The offense with which the defendant is charged is, under our statute, a felony. At common law, it was declared to be a nuisance and was indictable as such. The offense, under our statute, may be committed by one act, or by a series of acts constituting an offense continuous in its nature. It may therefore be proved by one act, or by a series of acts.

"Where several crimes constitute, in fact, one criminal transaction, evidence of all of such crimes may be given as part of the res gestæ of the offense with which the defendant is charged in the indictment." Allison v. State, 55 So. 453. It was therefore competent in this case for the state, for the purpose of showing the character of the table to offer evidence not simply as to one game, but to a series or any number of games played on the table; that it was kept in a room frequented by gamblers and in which gambling was done; and that the table was used as an instrument in gambling or was gambled upon, whether the defendant was or was not present at all of such games.

3. There is wide diversity of opinion between modern text-book writers, and also the various courts of last resort in the states of the Union, as to whether proof of offenses which were indictable nuisances at common law can be aided by evidence of common repute. 2 Wigmore on Ev. § 1620; 1 Wigmore on Ev. § 202; Underhill on Crim. Ev. § 475. This diversity is probably due to the difference in the language of the indictments and statutes under consideration, and also to confusion as to the real issue, i. e., whether the fact in issue is fame or reputation, or actual habit or character. 2 Wigmore on Ev. § 1620.

In Alabama, except in some well-recognized exceptions to the rule, the law has been well settled, since the case of Stanley & Elliott v. State, 26 Ala. 26, that common repute is not legal evidence tending to establish the existence of a fact. Common repute, except in well-recognized exceptions to the general rule, is only receivable in evidence in this state as relevant on the issue as to whether or not a particular person knew of the existence of a fact already in evidence. If the issue is whether a certain house is or is not a house of prostitution, for instance, then evidence that it is reputed so to be is inadmissible. If, on the other hand, the issue is whether a certain person knew that the house was a house of prostitution, then its common repute is admissible. In the case of Toney v. State, 60 Ala. 97, the Supreme Court, through Brickell, C.J., says: "The indictment contains three counts: The first count charging that the defendant 'did keep a certain house of ill fame, then and there resorted to for the purpose of public prostitution and lewdness'; the second charging that 'she was a common prostitute, or the keeper of a house of prostitution, etc.'; and the third that 'she was a common prostitute, or the keeper of a house of prostitution.' * * * In no aspect of the case was it permissible to give evidence of the reputation of the house in which the defendant lived."

In the case of Wooster v. State, 55 Ala. 221, the Supreme Court says: "The accusation is of a specific offense, in its nature susceptible of proof by witnesses who speak from their knowledge. The rule is that hearsay evidence--and such is the evidence of reputation--is inadmissible to establish any specific fact, capable of direct proof by witnesses who speak from their own knowledge; and when the rule is relaxed it is from necessity alone."

The court therefore erred in admitting evidence of the reputation of the room in which the table was kept, and it committed reversible error in so doing, if for no other reason, because the defendant's ownership or proprietorship of the room was so linked with the reputation of the room by some of the questions asked by the solicitor as to form a part of it. One of the questions was as follows: "Do you know the general reputation of the place where Mr. Martin had his place of business?" And, against the objection of the defendant, the witness was permitted to answer, "It is a gambling place." While the place where the table was kept was a gambling place, and the table referred to in the evidence a gaming table kept for gaming, if the undisputed evidence in the case is to be believed, the ownership or proprietorship of the room in which the table was kept was a matter about which the evidence was in dispute, and it therefore follows that injury to the defendant will be presumed by the admission by the court of the evidence referred to. Courts will never hold that the admission of irrelevant or illegal evidence before a jury is harmless unless the record shows affirmatively that no injury was done to the party against whom it was offered, and on the next trial of this case no evidence of the reputation of the room or table should be permitted.

4. The testimony of the witness W. D. Hailes, except that part of it which related to the offer of compromise, was subject to the hereinafter qualifications, relevant and competent. As the offense with which the defendant was charged can be proved by one act or by a series of acts so connected together as to form one continuous criminal transaction, the statement which Hailes testified the defendant made to him may, in one sense be regarded as part of the res gestæ of the offense. This statement, however, related to a game evidently played on some previous day or night, and not to a game in progress when the statement was made. While, from this statement, the jury were authorized to infer that the game then in progress was being played in a room under defendant's dominion and on a table kept or exhibited by defendant or in the keeping or exhibiting of which the defendant was interested, nevertheless it also related to a game at which the witness was not present, and therefore formed an admission, within the letter of the law, from which the guilt of the defendant might, by the jury, be inferred. Admissions from which the guilt of a defendant may be inferred are governed by the same rules as confessions. In Alabama the confessions of a defendant are regarded as having been made involuntarily and are, prima facie, inadmissible. To be admissible, they must be made voluntarily. Whether they are made voluntarily is a question of fact, not for the jury, but for the court, and the court should, by an examination voir dire, pass upon their admissibility before admitting them. As the question as to their admissibility is for the court, when they are admitted in the lower court on controverted questions of fact, a court of review will not revise the rulings admitting them unless they appear to be manifestly wrong. 1 Mayfield's Dig. p. 213, § 198. It is true that, in some cases where no preliminary proof as to the admissibility of confessions was required by the primary court, our Supreme Court has held the confessions admissible, but in all such cases the facts and circumstances under which the confessions were made affirmatively showed that there were no improper influences proceeding from the person to whom they were made, or from any other person or from the surrounding circumstances. In such cases the failure of the court to require the preliminary...