Rogers v. State

• Decision Date: 02 February 1915
• Docket Number: 264
• Citation: 12 Ala.App. 196,67 So. 781
• Parties: ROGERS v. STATE
• Court: Alabama Court of Appeals

67 So. 781

12 Ala.App. 196

ROGERS v. STATE

No. 264

Court of Appeals of Alabama

February 2, 1915

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Dock Rogers was convicted of gaming, and he appeals. Reversed and remanded.

Isbell & Scott, of Ft. Payne, for appellant.

W.L Martin, Atty. Gen., for the State.

BROWN J.

If it be conceded that the original complaint was wanting in that certainty which is necessary to constitute a formal accusation of crime, and that it was demurrable for failing to designate one of the places enumerated in the statute at which such games are prohibited, as required of indictments in such cases by section 6984 of the Code; still this was an amendable defect, and the purpose of the amendment offered by the solicitor was to obviate the objection raised to the complaint by the defendant's demurrer, which had been sustained, and the amendment was properly allowed. Campbell v. State, 150 Ala. 72, 43 So. 743; Simpson v. State, 111 Ala. 6, 20 So. 572; Wright v. State, 136 Ala. 139, 34 So. 233; Holland v State, 139 Ala. 120, 35 So. 1009. The better practice as to such amendments is to allow the original affidavit to be amended by adding the requisite averments, and require a reverification after the amendment is made. Gandy v State, 81 Ala. 70, 1 So. 35.

No objection appears to have been made to the complaint as amended on the ground that it was not reverified by oath, and under the curative provisions of section 6723 of the Code, this defect must be treated on appeal as having been cured by amendment.

As amended, the complaint charged the offense substantially as required by section 6984 of the Code, and was not subject to the objections urged against it by defendant's motion to quash and demurrer, both of which the court correctly overruled. Holland v. State, 139 Ala. 123, 35 So. 1009.

Likewise, the complaint filed by the solicitor, on appeal, in the circuit court in compliance with the statute (Code, § 6730) charged the offense with such a degree of certainty as to put the defendant on notice of the nature and cause of the accusation against him, and this is all the law requires. Little v. City of Attalla, 4 Ala.App. 291, 58 So. 949; Miles v. State, 94 Ala. 106, 11 So. 403.

There was evidence showing and tending to show that the defendant and five other persons engaged in playing a game with cards near Allen Dewyer's place, 150 yards from the road, one of the witnesses for the state testifying:

"We were playing five-up--we had 10 cents on the comer--there were six of us playing. The man that beat got the 60 cents. *** I don't know how often we had played there, several times. *** I have played there lots of times. I don't know as Dock [the defendant] was with us every time we played Dock was there before this. All the other boys have been there at other times at this identical spot."

The defendant did not deny that he was in the game on the occasion testified to by the state's witnesses, but denied that he had ever played cards at this place before that time. The only controverted question in the case was whether or not the place was a public place within the meaning of the statute, and this, under the evidence, was properly submitted to the jury. Cartiledge v. State, 132 Ala. 18, 31 So. 553; Winston v. State, 145 Ala. 91, 41 So. 174; Ferrell v. Opelika, 144 Ala. 135, 39 So. 249; Coleman v. State, 20 Ala. 51; Tolbert v. State, 87 Ala. 27, 6 So. 284.

To constitute a place a "house or place where spirituous vinous, or malt liquors are retailed, sold, or given away" within the meaning of the statute, and the averments of the complaint filed by the solicitor on appeal, it must be shown that a business of retailing, selling, or giving away spirituous, vinous, or malt liquors is maintained at the place, and...