Thornhill v. State , 14 Ala. App. 647 ( 1916 )

BROWN, J.

(1) The question first presented as to the sufficiency of the complaint in this case was disposed of adversely to appellant in Kirk v. State, infra, 70 South. 990. Section 4 of the act entitled “An act to suppress gaming and gaming places” denounces as a felony the exhibition or exposure to view of cards, dice, roulette wheels, or any gambling instrument whatsoever in “barred or barricaded houses or rooms, or in any place built or constructed in such manner as to make it difficult of access or ingress to police officers or other officers, or protected, furnished, or equipped with speaking tubes, dumb-waiters, electric wires or bells or other apparatus for giving alarm from the outside or from the inside of such house or room when two or more persons are present,” and provides: “And any and all persons who visit or resort to any such barred or barricaded house or room, or other place that is built, protected, or equipped in the manner described in this section, and where any cards, dice, roulette wheels, or any'gaming implements whatever are kept or exposed to view when said persons visit or resort to such place for the purpose of gaming shall be guilty of a misdemeanor,” etc.

The third count of the complaint, following the language of the statute, charges the misdemeanor therein denounced and was sufficient to sustain the judgment of the court.—Kirk v. State, supra; Lee v. State, 10 Ala. App. 191.

(2) The contention of appellant that, under section 76 of the Constitution of 1901, a. vote of two-thirds majority of the members elected to each House is essential to the enactment of legislation at a special'session on subjects not embraced in the Governor’s proclamation calling the special session, was ruled against appellant in State, ex rel. Meyer v. Greene, Judge, etc., 154 Ala. 249, 46 South. 268, where it was held that a two-thirds majority of a quorum of each House was sufficient. When the amendments to House Bill 301 were adopted as shown by the Journal of the House (House Journal, Special Session 1909, p. 653), these amendments became a part of the bill, and the Journals show that this bill after its amendment was passed by the House by the requisite majority and by message therefrom reported to the Senate, where it'was regularly passed by a like majority, in accordance with the requirements of the Constitution.

Section 5 of the act provides: “That the presence of electric bells, wires, or signals, or dumb-waiters, or of other implements or appliances that may be used for the purpose of communicating with persons who are occupying a barred or barricaded room on or about the premises of a hotel, restaurant, billiard room or any room above the grade floor in the business district of any town or city, is prima facie evidence that gaming was being carried on by such parties in a prosecution against them, if they have the general reputation of being gamblers, and in all such cases proof of such general reputation is admissible in evidence.”

The first and second counts of the complaint charged the defendant with gaming, and under this statute the general reputation of the accused as a gambler may become a legitimate subject of inquiry; but one essential of the predicate for such testimony is that the place where the game is carried on must be on or about the premises of a hotel, restaurant, billiard room, or a room above the grade floor in the business district of a town or city. The building in question is described in the evidence as “the Richardson building in Walker county, Ala., owned and-operated by Bert Richardson,” and while there was evidence from which it might be inferred that the building was in the city of Jasper, and that the floor where the game was carried on was above the “grade floor,” there is nothing to show that the building was in the class named in the statute or that it was situated in the business district of a town or city. The statute makes certain facts in connection with proof of defendant’s general character as a gambler prima facie evidence of his guilt and shifts the burden of proof. — Underhill on Criminal Evidence, 24a; Wynn v. State, 11 Ala. App. 182. This statute must be strictly construed against the prosecution and liberally to the defendant, and, unless the case is brought within the statute, proof of general character in the respect mentioned is not admissible unless the defendant first offers proof of his good character, which was not .done. On this predicate laid, the evidence touching the defendant’s general reputation as a gambler should not have been received, and the court erred in overruling the defendant’s objection thereto.

The evidence was sufficient' to afford an inference that the accused and others were engaged in gaming at the time the building was entered, and the affirmative charge as to the several counts of the complaint was well refused.

For the error pointed out, the judgment will be reversed.

Reversed and remanded.