McCleskey v. State
| Decision Date | 22 February 1938 |
| Docket Number | 7 Div. 325 |
| Citation | 179 So. 394,28 Ala.App. 97 |
| Parties | McCLESKEY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Charlie McCleskey was convicted of operating a gambling device, and he appeals.
Affirmed.
L.B Rainey, of Gadsden, for appellant.
A.A. Carmichael, Atty. Gen., and Silas C Garrett, III. Asst. Atty. Gen., for the State.
The indictment was in two counts. The first count charges an offense under act of the Legislature, Gen.Acts 1931, p. 806 "To Suppress The Evils Of Gambling Devices." The second count charges an offense under section 4248 of the Code of 1923.
The fine imposed by the verdict of the jury being in excess of the penalty fixed for a violation of section 4248, supra therefore must be referred to the first count.
The second count of the indictment being eliminated by the verdict of the jury, it becomes unnecessary for us to discuss its validity as affecting this appeal. But we may observe that the count follows the language of the statute under which it was drawn, and we see no defect which would subject it to a demurrer.
There is no objection taken to count 1 by demurrer, but it is here insisted that the count is not sufficient to support a verdict, and for that reason the cause must be reversed. The count is in the language of the statute creating the offense, and charges the defendant with the offense of possessing, etc., a gambling device contrary to law. Gen.Acts 1931, p. 807, § 3. The count was unquestionably subject to proper demurrer, but no demurrer having been interposed, and the count not being void, the point is waived. Carruth v. State, 23 Ala.App. 113, 121 So. 498; Carr v. State, 22 Ala.App. 415, 116 So. 903.
The defendant objected to going to trial, and moved for a continuance of his case on the ground that the jury panel from which the jurors to try his case were to be drawn had been present in court all during the week of the trial, and while some four or five other slot machine cases, similar to his, had been tried, in each of which cases the jury found the defendant guilty of operating a gambling device contrary to law. This motion for a continuance was overruled by the court, and the defendant was placed on trial.
This was a matter within the sound discretion of the trial judge, and in his ruling we find no abuse of this discretion. In the absence of prejudice or passion, it is to be presumed that jurors will try the cases presented to them in accordance with the law as given them in charge by the court, and the facts testified to by the witnesses. Sharp v. State, 23 Ala.App. 457, 126 So. 895; Seymore v. State, 23 Ala.App. 415, 127 So. 239; Cline v. State, 20 Ala.App. 578, 104 So. 347; Davis v. State, 24 Ala.App. 190, 132 So. 458.
The evidence in the case was without dispute, clearly disclosing that the defendant had set up and maintained a gambling...
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Mann v. State
...Ala.App. 578, 104 So. 347; Sharp v. State, 23 Ala.App. 457, 126 So. 895; Davis v. State, 24 Ala.App. 190, 132 So. 458; McCleskey v. State, 28 Ala.App. 97, 179 So. 394. remaining refused written charges requested by appellant were general affirmative charges as to both counts of the indictme......
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Gaskin v. State, 1 Div. 964
...Ala.App. 578, 104 So. 347; Sharp v. State, 23 Ala.App. 457, 126 So. 895; Davis v. State, 24 Ala.App. 190, 132 So. 458; McCleskey v. State, 28 Ala.App. 97, 179 So. 394.' In our opinion, there was no abuse of discretion in the case at hand. The veniremen were asked by the judge if anything th......
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Yates v. State
...228 Ala. 1, 152 So. 263; Martin v. State, 3 Ala.App. 90, 58 So. 83; Bowden v. State, 19 Ala.App. 377, 97 So. 467; McCleskey v. State, 28 Ala.App. 97, 179 So. 394. pointed out in Holmes, above, the courts do view with disfavor the giving of such a charge. See also Ex parte Grimmett, supra. H......
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Bolan v. State
...100 Ala. 129, 14 So. 538; Sayers v. State, 28 Ala.App. 45, 178 So. 247; Woodham v. State, 28 Ala.App 62, 178 So. 464; McCleskey v. State, 28 Ala.App. 97, 179 So. 394; Holmes v. State, 29 Ala.App. 594, 199 So. There are other questions which are presented for our review. We pretermit a discu......