W. H. Ray was indicted for “playing and betting, for that the said W. H. Ray, on the 26th day of March in the year eighteen hundred and ninety-two, in .the *88county aforesaid, did then and there unlawfully and with force and arms play and bet for money and other things of value at certain games, playing with cards, called faro, loo, brag, bluff, seven-up, tliree-up, poker, and other games played then and there with cards.”
At the trial Buck Ray testified that on the 25th of March, 1892, he was at Bateman & Colbert’s mill, making a fish-trap. Henry Ray, G. W. B. Joiner and Ben Cox were there. During the day he saw Henry Ray, Cox and Joiner playing and betting at cards in the mill-house ; they each had a pile of corn, and they said the corn was worth or represented ten cents a grain, or represented a dime; they also played for some fish-nets j they also played for an order on a negro by the name of Wright Carter. “As I understood it, the negro was indebted to each of them, and I think Henry Ray won the amounts the negro owed the other two. Joiner and Ben Cox took the fish-nets out of the pond and brought them down to the mill-house. Joiner won the fish-nets, and I saw them delivered to him the next day. The playing and betting was done in Taylor county.” G. W. B„ Joiner testified: “I was keeping the .mill of Bateman & Colbert on the 25th of March, 1892. The regular miller was sick, and I had been keeping the mill that week. I did not play and bet at cards with Henry Ray or Ben Cox that day or any other day, for money or any other thing of value. Mr. Henry Ray was sick on that day, and I know he did iiot play cards with me at all on that day. We did not play for anything whatever, neither for nets, corn, orders or money, or anything else. I never did play and bet at cards at Bate-man & Colbert’s with Henry Ray or any one else. There was no game of cards played at the mill on the 25th of March, the day before the mill-dam broke, and no game of cards played at the mill during the week before, for fun or 'otherwise. I am indicted for playing at the same *89time.” Ben Cox for defendant testified: “ I was at Bate-man & Colbert’s mill on the 25th day of March, 1892, the day before the mill washed away. I did not play and bet at cards on that day at the mill or at any other place, either with Henry Ray or Q-. W. B. Joiner or any other person. I never did play and bet at cards at any time, or at any place, with Ray or Joiner. In fact, I never did bet a cent on a game of cards in my life. I don’t gamble, and never have. Ray never saw me bet one cent on a game of cards in his life, either with Henry Ray or Or. W. B. Joiner, or with any other person, and he knows it. There was a game of cards played at the mill on the 25th day of March, 1892, for fun; we played, Mr. Joiner and myself, and kept the game with corn; the corn was not valued. Ray did riot play in any game, either for fun or otherwise. I am indicted for playing at the same time with Ray.”
The defendant made no statement. He was found guilty, and moved for a new trial on the grounds that the verdict was contrary to law and evidence, and so decidedly against the evidence as to show that it was the result of passion or prejudice, and as to shock the moral sense. The only special ground for new trial is, that at the time the defendant was placed on trial, owing to severe illness he was not in a condition, either physically or mentally, to go to trial. This ground is supported by the affidavit of a physician, dated September 1, 1892, stating that he was called on as a practicing • physician by the defendant to attend him on the 31st of August, the same day that he was tried for the offence of gaming; that defendant was very sick with bilious colic at the time of his trial; and “that he was not in his right mind at the time, and ixi no condition to-It appears that the verdict was rendered on August 30, 1892. It is certified by the court that the defendant ' appeared axxd announced ready for trial when the case *90was called, and the attention of the court was not called to the fact that he was sick, nor was any motion for continuance made for that reason. It was stated that the defendant had headache, which statement was made by the counsel when the case was sounded, in order to wait until he could be called at the window. A new trial was denied, and defendant excepted.
W. S. Wallace and O. M. Colbert, by brief, for plaintiff’ in error. Albert A. Carson, solicitor-general, by brief, contra.