Townsend v. State
| Decision Date | 14 May 1903 |
| Citation | 34 So. 382,137 Ala. 91 |
| Parties | TOWNSEND v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Macon County Court; M. B. Abercrombie, Judge.
Silas Townsend was convicted of gaming, and appeals. Reversed.
Wood & Martin, for appellant.
Massey Wilson, Atty. Gen., for the State.
It is true there is no conflict in the evidence as to the guilt of the defendant, but the credibility of the witnesses was matter for determination by the jury. It was therefore error for the court, at the written request of the solicitor, to instruct the jury that if they believe the evidence they must find the defendant guilty. This instruction required his conviction, though the jury may not have believed the evidence beyond a reasonable doubt. Jackson v. The State, 106 Ala. 12, 17 So. 333; Carr v. The State, 104 Ala. 4, 16 So. 150; Shields v. The State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; Harris v. The State, 100 Ala. 129 14 So. 538; Pierson v. The State, 99 Ala 148, 13 So. 550; Heath v. The State, 99 Ala. 179, 13 So. 689. A charge in exactly the same language as this one was held proper in Jones v. The State, 96 Ala. 56, 11 So. 192. But the court, in considering it, evidently overlooked the infirmity we have pointed out, and which, in the later decisions cited above, was held to render it bad, and the giving of it to be reversible error.
The affidavit upon which this defendant was tried and convicted charged that he and nine other persons therein named played at a game with cards or dice, or some device or substitute for cards or dice, in a highway or some other public place. The evidence undisputedly showed that two of the persons named did not play in the same game with this defendant, but played in another game at the same place and at the same time. This fact clearly brings the case within the principle that was allowed to control in Elliot v. The State, 26 Ala. 78, and McGehee v. The State, 58 Ala. 360. See, also, Johnson v. The State, 44 Ala. 414; Cox v. The State, 76 Ala. 66; Lindsey v. The State, 48 Ala. 169. This defendant and those playing in the game with him should have been proceeded against separate and apart from the others who played in a different game, or the prosecution should have been against each separately.
Reversed and remanded.
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