Smith v. State

37 Ala. 472

Opinion

A. J. WALTER, C. J.

The witness only participated in the playing by aiding an unskillful player with his advice, and at. one time doing some little acts, during a brief absence of such unskillful player, in., his place. These acts were not of such character as.- neces&irily to constitute the witness an accomplice,, when he was noti engaged in the performance of therm During a part of the playing, the witness was engaged in reading. While he was so engaged,..it cannot be affirmed, as a legal conclusion, that he was either assisting in the game, or participating in it. The offense may have been complete, by what was done during the time occupied by the witness in reading. — Swallow v. The State, 20 Ala. 30 ; Cannon v. State, 15 ib. 383; Coggins v. State, 7 Porter, 263. The court was, therefore, not authorized to assume conclusively, that the witness 'was an accomplice at -all the points of time when enough was done -to authorize a conviction. This the court was, in the first charge asked, requested to do; or, at least, that was the effect of the charge. There was,-therefore, no error in the-refusaL

[2.] There was no -error in the ¡¡refusal of '¿the second ‘■charge requested.

Affirmed.