Walker v. State

• Decision Date: 11 May 1906
• Citation: 147 Ala. 699,41 So. 176
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

41 So. 176

147 Ala. 699

WALKER v. STATE.

Supreme Court of Alabama

May 11, 1906

Appeal from Macon County Court; M. B. Abercrombie, Judge.

"Not officially reported."

Ernest Walker was convicted of playing at a game of cards at a public place, and appeals. Reversed and remanded.

The defendant was tried under a warrant charging him with "playing at a game of cards at a public place in the town of Notasulga," was convicted, and fined $20. The evidence showed that the playing was done under a chinaberry tree in the yard of one Harriet Show, who kept a boarding house; that the playing was under a chinaberry tree about 5 feet from the porch and about 15 feet from the public road that there were a lot of sheets and other things hanging on a wire between the place where the game was played and the public road; that one passing along a public road could not see the parties or the place where the parties were playing that one could not see unless they left the public road and came around behind where the sheets and other things were hanging. The principal witness for the state testified that he was passing along the public road and was attracted by some one talking, went into the yard behind the sheet and saw the game in progress, but that he could see no one from the road. It was not shown in what county the game was played. The defendant requested the affirmative charge, which the court refused.

H. P Merritt, for appellant.

Massey Wilson, Atty. Gen., for the State.

TYSON J.

The affirmative charge requested by defendant should have been given; there being no evidence tending in any degree to establish the venue of the offense charged. Furthermore, it was erroneously refused for the reason, under the undisputed evidence, that the place at which the game was played was not a public place. It was hidden from view of travelers along the public road, in a private yard, and the players could not have been seen, except by entering the yard and going behind the obstruction, which completely shut out the view of the traveling public. It is of no consequence that all sides of the place where the game was played was not surrounded by obstructions, so as to prevent the players from being seen from every point of view. Suffice it to say the view of it was shut off from the public road. Graham v. State, 105 Ala. 130, 16 So. 934.

There is nothing in the testimony tending to show that what was being said by the...