Cartiledge v. State

McCLELLAN, C. J. — It appears to be settled by the .decisions of this court that the overruling of an objection to 'a question propounded to a witness cannot be reviewed, or at least furnishes no ground for a reversal, unless the bill of exceptions shows that the question was answered and what the answer was. —Hughes v. State, 75 Ala. 31, and authorities there cited; Allen v. Draper, 98 Ala. 590. The rule is otherwise where an Objection to a proper question is sustained.—Nelson State, 130 Ala. 83. All exceptions reserved by defendant in - respect of testimony were to the overruling of his objec: lions to questions which are not shown by the. bill of exceptions to have been answered, and under the rule declared first above appellant can take nothing by these exceptions even though some of the questions may have been-open to the objection made- to them. ■The evidence for the Statq tended to show that the defendant played at a game of cards in the bed-room of one Wilson on Commerce street in the city of Montgom [19] ery and tliat an indefinite number of persons, and different persons at different times had used this room every week or two throughout the preceding year for the purpose of gaming, and they came and went there for that purpose whenever they saw fit, and without special invitation of Wilson the owner. On this evidence it was open to the jury to find that the defendant played a game of cards at a public place, and the court properly refused to give the affirmative charge for defendant. The special charges given at' the request of the defendant fully cover the aspect of the case most favorable. to him and are full favorable to him, in their statements of the law. The special charge refused to the defendant, hypothesizes facts not in evidence as, for instance, the case of a party composed of the same members playing in the private bed-room of one of them “every night in the year,” etc., etc., and 'Concludes as follows: * * * “and if upon a consideration of all the evidence you [the jury] come to the conclusion that the playing was. done under the foregoing statement. of facts and circumstances the-defendant must be acquitted.” The “foregoing facts and circumstances” not being the facts and circumstances in evidence in this case, the court was under no duty to give the charge, albeit the facts hypothesized may have been in some respects more unfavorable to defendant than those in the evidence most favorable to him. Moreover, the charge is absolutely faulty in that, it declares that the playing every night in the year in a bed-room by a party or some members of a party composed of the same members could not make the bed-room a public place’.under the statute, whereas this party may have been so numerous as to constitute the place practically a common resort of .the community for the purposes of gaming, and hence a public place within the terms of the statute. We discover no reversible error in the record and the judgment of the city court will be Affirmed.