Tolbert v. State
| Decision Date | 20 May 1889 |
| Citation | 87 Ala. 27,6 So. 284 |
| Parties | TOLBERT v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.
Sanford Tolbert was convicted under an indictment for betting "at a game played with cards, dice, or some device or substitute for either cards or dice, in a public house highway, or other public place, or at an outhouse, where people resort." Crim. Code Ala. § 4057, prohibits betting at any game prohibited by section 4052, and the latter section prohibits playing with cards or dice, or any device or substitute therefor, at certain designated places. The judgment entry, after reciting the conviction of defendant, continues: "It is therefore considered by the court that he be and is sentenced to hard labor for the county for thirty days for the fine, and to an additional term at hard labor for the costs, not exceeding 8 months, at 30 cents a day." Defendant appeals.
Stallworth & Burnett, for appellant.
W L. Martin, Atty. Gen., for the State.
The indictment in this case is defective, and will not support the conviction. The constitute a good indictment for the offense attempted to be charged in this case, it must be averred that a game was played "with cards or dice," or a substitute therefor, at one of the places mentioned in the statute, and that the defendant did bet at such game. Code 1886, §§ 4052, 4057; Jacobson v. State, 55 Ala. 151; Mitchell v. State, Id. 160; Collins v. State, 70 Ala. 19. The indictment in the present case is not specific enough. While it avers that the game on which the bet was made was one played with cards or dice, or some device or substitute for either cards or dice, it fails to aver that the game on which the bet was made was in fact played. This precise question was so ruled in Dreyfus v. State, 83 Ala. 54, 3 South. Rep. 430, and in Johnson v. State. 75 Ala. 7; Smith v. State, 63 Ala. 55.
Several objections were made to questions propounded to witnesses, and sustained, but it is not shown what answers the witnesses were expected to give, nor, indeed, that they could have given any information on the subjects inquired about, affecting the defendant. We cannot consider these objections. 3 Brick. Dig. p. 444, §§ 577-579.
Conversations tending to implicate the defendant, had when he was not present, should not have been received; and if they did not relate to the case on trial, they were irrelevant, and inadmissible on that account.
The character of the house, whether public or private, was an issue in the cause, the legitimate...
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Parham v. State
... ... objection to the question may be sustained on the theory ... that, "the record does not show what answer from the ... witness was expected, so that this court can pass ... intelligently on the ruling, and we cannot, therefore, ... consider it." Tolbert's Case, 87 Ala. 27, 36 So ... 284; Ross' Case, 139 Ala. 144, 36 So. 718 ... "Furthermore, the question was very general, so much so, ... that irrelevant evidence would have been responsive to ... it." Ross' Case, supra. Moreover, it affirmatively ... appears further on during the ... ...
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Gafford v. State
... ... 8 Enc. Pl. & Prac. 236, and note 4. Besides, an offer must ... have been made showing what evidence would be given if the ... witness was permitted to answer the question and the purpose ... and object of the testimony sought to be introduced ... Id ... In the case of Tolbert v. State, 87 ... Ala. 27, 6 So. 284, Judge Stone, in speaking on this subject, ... said: "Several objections were made and sustained to ... questions propounded to witnesses; but it is not shown what ... answers the witnesses were expected to give, nor, indeed, ... that they could have given ... ...
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Smith v. State
... ... record is silent as to what answer from the witness was ... expected, so that this court cannot pass intelligently on the ... ruling. Furthermore, the question was so general that ... irrelevant evidence would have been responsive to it ... Ross' Case, 139 Ala. 144, 36 So. 718; Tolbert's Case, ... 87 Ala. 27, 6 So. 284 ... The ... seventh, eighth, and ninth grounds of the assignment of ... errors relate to the court's action in sustaining ... objections to questions asked by the defendant of the witness ... Roberts, by which he sought to elicit evidence of the ... ...
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Birmingham Ry., Light & Power Co. v. Barrett
...as well be shown circumstantially, as by his direct affirmation. The absence of such a showing was stated by Judge Stone in Tolbert v. State, 87 Ala. 27, 6 So. 284, as one the reasons that justified the exclusion of a question to a witness. In the present case, the question to the witness W......