Bowdon v. State

McCLELLAN, J. The bill of exceptions in this case purports to set out all the evidence. It fails to show that there was any evidence of venue adduced. The court, at the request in writing of the solicitor, charged the jury that, if they believed the evidence, they would find the defendant guilty. This instruction, of course, raised and decided the question of the sufficiency of the evidence to sustain a conviction. Its effect was to direct and require a conviction, without proof 62 that the offense was committed within the territorial jurisdiction of the court. Had there been no instruction going to the sufficiency of the evidence to convict, no reversal could be had on account of this absence of evidence of venue from a bill of exceptions reciting that it contains all the evidence, there being no point made in that connection in the court below. But that is not the case here. The charge asserts that the evidence of the act charged, without any proof that it was committed in the county, is sufficient to authorize and support a conviction. This was error, which must work a reversal of the judgment.—Hubbard v. State, 72 Ala. 164. We suggest, without deciding, whether the general charge given for the State was not open to objection from another point of view, in that the evidence possibly left it to rest in inference, that the room in which the playing was done, not per se a public house, “was free of access to all who were known to engage in gaming, or that it was common to ail who would gratify the passion gaming engenders and stimulates” (Smith v. State, 52 Ala. 384); the rule being, that when any material fact lies in inference from other facts, the general charge should not be given. The judgment of the Circuit Court is reversed, and the cause-remanded.