Nickols v. State

HARALSON, J. The only question in this case we [60] need consider, grows out of the refusal of the court to give charge No. 2 requested by defendant, that “If the evidence shows that the defendant played or bet at a game of cards only once, in the back room of a residence, this would not justify a conviction.” In Smith v. The State, 52 Ala. 388, it was said: “Any house to which all may go night or day, and indulge in gaming in its various forms, is a public place within the meaning of the statute.” A dwelling house, or private room, is within the statutory prohibition, if it is open to those who would resort thither to gratify their passion for gaming, and frequently, the greater the air of secrecy which is given the place, the more effectual is the deception. Prima facie, a dwelling is a private place, but where the evidence tends to show that it is used for other than private purposes, and as a resort to those who would indulge in gaming, the question of its being also a ‘ ‘public place, ” within the meaning of the statute, is properly left to the jury. — Coleman v. The State, 20 Ala. 52; Jacobson v. The State, 55 Ala. 154; Johnson v. The State, 75 Ala. 7; Tolbert v. The State, 87 Ala. 27. If the jury found under the evidence that the house where the playing and gaming took place, was a public place, the fact that defendant bet or played cardo there only once, was of no consequence, nor that the game was conducted in a back shed-room of the dwelling. The house in the contemplation of law is an entirety, or unit. — Tolbert v. State, supra. The charge was properly refused. Affirmed.