McGee v. State
| Decision Date | 27 May 1897 |
| Citation | 22 So. 113,115 Ala. 135 |
| Parties | MCGEE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county; James J. Banks, Judge.
The prosecution of the appellant, Joe McGee, was commenced by affidavit made before a justice of the peace, in which the defendant was charged "with gaming in a public place." The facts of the case are sufficiently stated in the opinion. He appeals from a conviction. Reversed.
Rich'd H. Fries, for appellant.
Wm. C Fitts, Atty. Gen., for the State.
The affidavit made by the prosecutor before the justice of the peace for the arrest of defendant merely charged him with gaming in a public place, within 12 months before the making of said affidavit.
The justice, under section 2 of the act, approved December 14 1894, providing for the trial of criminal causes in the Bessemer division of the circuit court of Jefferson county etc. (Acts 1894-95, p. 252), issued his warrant on this affidavit, commanding the officer to arrest the defendant and carry him before the judge of the circuit court of said county for the Bessemer division, at its next term, "to answer the state of Alabama of a charge of gaming in a public place, preferred by M. W. Parsons." On his arrest by the sheriff, defendant gave bond for his appearance at the next term of said court at its Bessemer division, to answer the offense as charged in the affidavit and warrant.
At the next term of said court, the defendant appeared and was put upon his trial without any complaint against him other than that contained in said affidavit and warrant. The judgment entry recites that he was arraigned thereon, and pleaded not guilty. Before doing so, he demurred to the warrant, which was overruled.
The grounds of demurrer were, that it failed to allege any offense against the laws of the state; that it failed to set out in what manner the defendant was gaming; the particular place where the alleged gaming was done; with what device the defendant was gaming; whether defendant was gaming for money or other thing of value, or that he played any game with cards, or dice or substitute or other device therefor.
The demurrer should have been sustained. Under section 4052 of the Criminal Code, playing any game with cards or dice, or any device or substitute therefor, at any one of the places designated therein, is prohibited under penalty; and under section 4057, betting money, bank notes, or other thing of value, at any game prohibited by said section 4052, is also prohibited under a larger penalty than for mere playing without betting. But, neither playing nor betting is prohibited, except by one of these sections. A defendant charged with the offense of gaming, or any other criminal offense has the constitutional right to "demand the nature and cause of his accusation," so that he may be enabled to identify the offense charged against him. Without this, there is no...
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...rendered; and that no brief statement of "the complaint" was filed by the prosecuting officer. Moss v. State, 42 Ala. 546; McGee v. State, 115 Ala. 135, 22 So. 113; Code 1907, § 6730; Acts 1915, p. The petitioner in the county court moved to quash the affidavit; and that court was in error ......
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...it as authorized by section 6703, was fatally defective. Under the decisions in Miles v. State, 94 Ala. 106, 11 So. 403, and McGee v. State, 115 Ala. 135, 22 So. 113, the demurrer should have been Reversed and remanded TYSON, C.J., and SIMPSON and DENSON, JJ., concur. ...