Minto v. State

62 So. 376, 8 Ala. App. 306, 1913 Ala. App. LEXIS 169

• Court: Alabama Court of Appeals
• Decided: June 3, 1913
• Status: Published

Opinion

WALKEB, P. J.

— In the course of the examination of the first witness introduced by the prosecution in reference to the place which was sought to be proved to have been the scene of the commission by the defendant of the offense charged; the following question was asked: “How did you get in; how was the entrance there; how many doors you went through before you get into the place; was there a gambling table there?” This was not a single question, but several questions asked together. The defendant objected to the inquiry-as a whole. Part of it called for a statement of the witness descriptive of the place inquired about. This part of the inquiry certainly was not subject to objection. This being true, the objection going to the several questions as one whole Avas properly overruled. — Theodore Land Co. v. Lynn, 41 South. 682; Southern Ry. Co. v. Hardin, 1 Ala. App. 277, 55 South. 270.

As the charge against the defendant could be sustained by proving first that a table was kept or exhibited for gaming at a certain place and then that the defendant was interested or concerned as its keeper or exhibitor, it was permissible to admit evidence having a tendency to prove that the place in question was one arranged for gambling and resorted to for that purpose; such evidence being subject to exclusion unless subsequently other evidence was adduced connecting the defendant with the commission of the offense.

In connection with the statement previously made by the witness Parker as to the frequency of- his visits to the place mentioned by him and as to gaming which was in progress there at such times, it was permissible to prove by this witness that when he went there, before he was let in, some one looked at him through a peephole in a door in the stairway leading to the room in question. The fact so deposed to was corroborative of the other evidence tending to prove that the place was kept and maintained for gambling purposes, and the court was not in error in overruling the objection to the question by which it was brought out. There was no lack of the requisite evidence to connect the defendant with the commission of the offense charged.

After the Avitness Brinsfield had Avithout objection testified to the circumstance of tAVO policemen’s coming to the place above referred to on an occasion Avhen several men Avere there but not engaged in gaming, the defendant objected to a question which elicited from the Avitness the statement that “some one in there said the police were coming.” The fact of the visit of the policemen on that occasion being in evidence without objection, avo cannot conceive hOAV the defendant could have been prejudiced by the Avitness being permitted to add the statement to the effect that some one there made the remark that the police Avere coming. We are satisfied that no injury resulted to the defendant from the ruling the sole result of which Avas to let in testimony as to the making of such a remark on such an occasion. It folloAvs that there cannot be a reversal because of that ruling. — Code, § 6264.

The question asked a Avitness for the state on- his cross-examination, “Have you ever been in the club-rooms of the Beauvoir?” did not on its face indicate or suggest that the answer to it could shed any light on any issue in the pending case. Whether or not the witness had ever been at the place inquired about apparently was a matter having no relevancy to any issue to be passed on, and the court is not shoAvn to have been in error in sustaining the objection to the question.

In connection with other evidence having a tendency to prove that the defendant Avas concerned in gaming carried on in rooms which the witness Sharp testified were rented by him and the defendant, it was permissible to elicit from that Avitness the fact that there was a “take-out” in games of chance played for money in that place. Plainly such testimony in its connection with other testimony referred to had some tendency to support the charge made against the defendant.

The action of the court in oyerruling the objection to the question asked the witness Sharp, “Where did you get the drinks from?” is not a ground of reversal, as the question did not elicit any testimony which was at all prejudicial to the appellant.

To maintain the charge made in the indictment it was not incumbent on the prosecution to prove that the .defendant shared in the “take-out” or profit from the games testified about. The question was whether he kept or exhibited, or was interested or concerned in keeping or exhibiting, any table for gaming. — Code, § 6985. He might be guilty of the offense denounced by the statute, though the table testified about was not operated for hire or reward. — Martin v. State, 2 Ala. App. 175, 56 South. 64. There was testimony having a tendency to prove that the defendant was concerned in — • that is, participated or took part in — keeping or exhibited a table for gaming. This was enough to show his guilty connection with the offense, though he was without a financial interest in any game testified about.—Martin v. State, supra; United States v. Scott (C. C.) 74 Fed. 213, 217; State v. Bach Liquor Co., 67 Ark. 163, 55 S. W. 854. The statement of these propositions discloses a fault in each of the written charges refused to the defendant which justified the court’s refusal to give it.

Affirmed.