After a careful reading of the record and the entire evidence in this case, and after an attentive and thoughtful consideration thereof, I have reached the conclusion that it would be unconscionable to permit the conviction of appellant to stand; that such conviction is so wrong and unjust, it borders upon a travesty of justice. I do not and cannot concur in the affirmance of the judgment of conviction from which this appeal was taken; nor can I endorse or approve numerous statements in the opinion the direct tendency of which is to unduly reflect upon, and cast opprobrium upon the several apparently disinterested witnesses who testified in behalf of the defendant, and which testimony, if believed, would have been a conclusive answer to the indictment. It does appear from the evidence that few of the witnesses (to be exact four of them), who testified to a perfect alibi for the defendant, were, on the night in question, invited to the private home of defendant's witness, Mr. J.O. Popewell, to engage in a game of cards, and some of them did play for stakes in said game. But it is unfair and unbecoming to blatantly term these witnesses as "gamblers;" for there being no dispute about the fact that said card game was played in a private home, and not in a public place, which the law prohibits, the parties so engaged violated no law of this State. Section 4235 of the Code 1923, the governing Statute, makes it an offense only, when the game with cards, etc. is played in a public place. A private residence is not per se, a public place, within the meaning of the Statute, supra. Coleman v. State, 20 Ala. 51. Moreover, there were a larger number of other witnesses, some ten or fifteen, who testified to facts tending to establish a perfect alibi for defendant, who were not at Mr. Popewell's home, on the night in question, and so far as this record shows no taint of "gambling" could be cast upon them; yet the opinion contains the unwarranted blanket statement, not borne out by the evidence, that on the question of alibi, "he (defendant) supported his testimony by that of a number of gamblers who testified he spent the night there at Popewell's with them."
The indictment in this case charged the defendant with the offense of robbery, the alleged injured party being designated as James Largin. Upon the trial the defendant was called upon only to answer and defend against the identical charge contained in the indictment, and none other. But it affirmatively appears from this record, that another and totally different charge wholly disconnected and having no relation to the charge of robbery, was injected into this case to the great detriment and injury to the defendant. This other charge had reference to another and totally different transaction between this appellant and the alleged injured party Largin, and a larger part of the testimony as shown by the record pertains to and has reference to this foreign matter, and portrays a shady transaction between these two parties; the transaction being what might properly be termed a "flim flam" game, where, as stated, in the opinion by Judge Rice of this Court resulted in establishing a bad character for this appellant, notwithstanding a large number of apparently disinterested witnesses testified in this case that he bore a good character. It appears to the writer that this appellant was actually put upon trial for two offenses instead of the one charge contained in the indictment. The record of the evidence discloses that more testimony was offered against the defendant *Page 9 in support of the foreign charge upon which he was not being tried, than was offered against him on the trial of the charge for robbery. The opinion of this court, to which, as stated, I do not concur, deals in the main, and it could be said, the judgment of affirmance was rested upon this foreign charge and not upon the charge for which he was being tried.
As to the charge upon which this case should have been tried and determined, that of robbery, but two witnesses were examined, towit: James Largin and his wife Edna Largin. Even the opinion of my associate admitted their testimony was"very much in conflict." In this respect, if in no other, the record affords full support of the above quoted utterance in the opinion.
James Largin testified in substance, among numerous other things all hopelessly conflicting, that this appellant came to his home, on the night in question about 2:00 o'clock. "He knocked on the door and I asked who is it? I got up and opened the door and asked him in, he came in and asked me to go with him to see two fellows we were talking to that day about some diamonds, and if he made a trade with them he would give me a good cut of the money, and I says: 'Well I hate to go down there this time of night and talk to them.' As I stated it was about two o'clock at night. I do not know how long he had been knocking before I waked up. I and my wife were in the room." He further stated the defendant took his (Largin's) pocket book out of his pants' pocket at that time of night.
Mrs. Edna Largin, wife of the above named witness Jim Largin, and the only remaining witness as to the facts of the alleged robbery, testified on cross-examination: "It was sometime after nine o'clock that this man (defendant) came to the house that night. I hadn't been in bed very long, we were awake. * * * We retired that night the time my husband James came in, it might have been before nine o'clock. Jim came to bed before nine o'clock. He had been in bed about ten or fifteen minutes when they knocked on the door, and this man came in. I don't remember if Jim had turned out the light." During her further examination she stated: "I went to bed about seven o'clock. Jim came in about nine o'clock and went to bed and he had been in bed ten or fifteen minutes. I did not go to sleep from the time James got to bed until the knock on the door came. I am positive of that." And later the concluding statement of the witness was as follows: "I looked at the clock when Jim came in. It was ten or fifteen minutes until nine. I did not look at the clock when Jim left after this man. I am positive that it was ten or fifteen minutes until nine when he went to bed. The clock was in the room. It was running. It was ten minutes until nine when George Brown came in."
The foregoing irreconcilable testimony of the only two witnesses as to the main facts is in line with and indicative of much of the other testimony given by these two witnesses. They were under the rule, hence could not hear each other testify. The writer does not mean to infer, or to state, that all this apparently wholly unreliable testimony entitled the defendant to a directed verdict. Certainly not. It was for the jury to consider and determine initially, and from long years of experience the writer is firmly of the opinion that no unbiased jury would ever have convicted a defendant upon so serious a charge as here, unless it had been for the unwarranted admission of the voluminous testimony as to the other offense above referred to. It does affirmatively appear that the prosecutor entertained a grievance against the accused, hence a motive in finally prosecuting him upon an apparently trumped up charge. The writer is of the opinion, however, that the unsavory testimony adduced upon the trial and from the whole atmosphere thereof, that the trial court should promptly have granted defendant's motion for a new trial, and erred in failing so to do. For the above stated reasons, and many others apparent on the trial, but cannot be here detailed the writer without hesitation dissents from the opinion affirming the judgment of conviction from which this appeal was taken. The cause should have been reversed and remanded. *Page 10