Dreyfus v. State

CLOPTON, J. — The indictment is found under section 4209 of the Code of 1876, which makes betting or hazarding any money, bank-notes, or other things of value, at any game prohibited by section 4207, an indictable offense. Section 4207 forbids playing “at any game with cards, dice, or any device or substitute for either cards or dice, at any tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquors are sold, retailed or given away; or in any public house, highway, or other public place, or any outhouse where people resort.” The offense denounced by this section does not consist in merely playing a game with cards or dice, or a device or substitute therefor, but in playing such game at one of the prohibited places. To constitute the offense with which the defendant is charged, the-necessary constituents of the offense forbidden by section 4207, with the wager element superadded, are [55] essential. An indictment charging the offense, no form in such case being prescribed by the statute, must aver all the facts necessary to the guilt of the accused. It should aver, that a game with cards, dice, or a device or substitute for cards or dice, was played at one of the places enumerated in the statute, and that the defendant bet thereon. The indictment does not sufficiently aver that a game was played. Johnson v. State, 75 Ala. 7; Napier v. State, 50 Ala. 168. [Reversed and remanded.