Town of Boaz v. Jenkins, 8 Div. 500.
| Decision Date | 19 March 1946 |
| Docket Number | 8 Div. 500. |
| Citation | 25 So.2d 394,32 Ala.App. 299 |
| Parties | TOWN OF BOAZ v. JENKINS et al. |
| Court | Alabama Court of Appeals |
J W. Brown and E. B. Black, both of Boaz, for appellant.
Herbert H. Conway, of Albertville, for appellees.
Section 80, Chapter 31 of the Municipal Code of the Town of Boaz is as follows:
'Betting at Cards, Dice etc.
'It shall be unlawful for any person to bet or hazard any money bond, note or other things of value, at any game played with cards, or dice, or any device or substitute therefor, or any game of chance or skill, whether publicly or privately.'
On 26 February 1945, police officers of the Town of Boaz, without any warrant or writ of any nature whatsoever, entered the home of J. W. Jenkins, located in the police jurisdiction of Boaz. There they found Jenkins and seven other men. Some of the men were seated around a table on which were scattered playing cards and seven dollars and fifty cents, and those not seated were standing around in the room. The officers did not observe any actual game in progress. No effort was made by the prosecution to establish which of the men were actually at the table or which were merely in the room. In fact Jenkins was the only person mentioned by name in examination of witnesses by counsel for the Town at the trial in the court below. Regardless of the unsatisfactory state of the evidence presented by the Town as to the men involved other than Jenkins we refrain from passing on its sufficiency since the case must be affirmed on other grounds.
At the conclusion of the prosecution's case in the court below the defendants rested and moved the court to take the case from the jury and discharge the defendants. The court granted the motion, stating that it was the court's view that the ordinance, supra, went further than the State law and was invalid in so far as it prohibited gaming in a private home. Judgment entry to this effect appears in the record.
No competent evidence shows that Jenkins had by any acts and conduct changed the character of his home from a private dwelling to a public place. Such being the case the acts of the defendants violated no State law, which prohibits gaming in a public place. See Section 263, Title 14, Code of Alabama 1940.
The question then arises as to whether the Town of Boaz can enact an ordinance going beyond the State Statutes and prohibit gaming in a private as well as a public place.
Certainly the ordinance is not invalid in toto because a part may go beyond the permissible legislative power of the town provided the good part is severable from the offensive portion. Little v. City of Attalla, 4 Ala.App. 287, 58 So. 949. However, that part of the ordinance prohibiting gaming privately is inconsistent with the policy of the State as evidenced by the State Statutes pertaining thereto, and that portion of the ordinance is invalid. A similar question was presented in the case...
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Ingram v. State
...of Birmingham v. Richard, 44 Ala.App. 127, 203 So.2d 692, and the statute does not prohibit gaming in a private home. Town of Boaz v. Jenkins, 32 Ala.App. 299, 25 So.2d 394; City of Birmingham v. Richard, In some of the earlier cases it was said: 'Within the meaning of Section 4792 of the C......
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Kilpatrick v. State
...of the theft in Kilpatrick's answers. He did admit to gambling. However, not all gambling is a public offense. Town of Boaz v. Jenkins, 32 Ala.App. 299, 25 So.2d 394. Therefore, we consider that we do no violence to the evidence in saying that Kilpatrick did not--from Newsom's testimony--ei......
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Downey v. City of Bay Minette, 1 Div. 763
...State, as evidenced by the State statutes, and decisions construing the same. It is therefore invalid in this aspect. Town of Boaz v. Jenkins, 32 Ala.App. 299, 25 So.2d 394; Hurvich v. City of Birmingham, 35 Ala.App. 341, 46 So.2d Under Section 220, of the Constitution of Alabama of 1901, n......
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Allen v. Axford
...of the state cannot be deemed to have and exercise more power in the legislative field than does its creator. Town of Boaz v. Jenkins et al., 32 Ala.App. 299, 25 So.2d 394. Indeed, Article XXVIII (Interpretation of Chapter) of the General Zoning Ordinance of the City of Birmingham, reflects......