Rosson v. State

• Decision Date: 08 June 1891
• Citation: 9 So. 357,92 Ala. 76
• Parties: ROSSON v. STATE.
• Court: Alabama Supreme Court

9 So. 357

92 Ala. 76

ROSSON v. STATE.

Supreme Court of Alabama

June 8, 1891

Appeal from circuit court, Jackson county; JOHN B. TALLY, Judge.

Appeal of Joseph R. Rosson from a conviction of card playing. Defendant demurred to the indictment on the ground that it failed to allege that the game was played at a place prohibited by the statute.

R W. Clopton, for appellant.

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

McCLELLAN J.

It has been many times held by this court that, in an indictment under section 4057 for betting at any game prohibited by section 4052 of the Code, the fact that the game at which the betting is alleged to have been done was played must be averred. Smith v. State, 63 Ala. 55; Johnson v State, 75 Ala 7; Dreyfus v. State, 83 Ala. 54, 3 South. Rep. 430, Tolbert v. State, 87 Ala. 27, 6 South. Rep. 284. All of our cases on this subject, however, were decided with respect to indictments found before the Code of 1886 went into effect, and all of them, except that last cited, were handed down before that time. The indictment in Tolbert's case was returned into court on October 18, 1878, more than two months before the Code of 1886 became operative, though the case was not decided here until long afterwards. That Code prescribed a form of indictment in such cases which had not before existed. By reason of the prescription of this form, it is now only necessary to allege that the defendant "bet at a game played with cards or dice," etc. The counts of the present indictment to which a demurrer was interposed follow this form strictly, and is in all respects sufficient. Code, § 4899, form 16. The demurrer was properly overruled.

The bill of exceptions in this case must be disallowed. In term-time the following order was made: "It is further ordered by the court that the defendant have until the 28th day of March, 1891, to have a bill of exceptions signed." No bill having been signed within the time thus limited, on the 30th day of March, 1891, after the lapse of the time fixed in the order of the court, the judge in vacation, by an order dated and filed as of said 30th day of March, 1891, undertook to extend the time until the 15th day of May, 1891, and subsequently, on May 14, 1891, by a similar order undertook to allow until May 25, 1891; and the bill of exceptions was in fact signed on May 22, 1891. Now, we do not doubt but that the time allowed in term-time may be extended more than once by...