Ward v. State

STONE, J.

The defendant was indicted under section^ 3256 of the Code, which is in the following language:'.' “Any white person, who plays at cards with any slave orr free negro, must, on conviction, be fined,” &c. We think-that, to come within this section, a game must be entered upon, and some act done towards its completion. Amusing one’s self with cards, as with toys, will not make out the offense. It is not necessary, however, that the game shall be completely played out. If the game be in part entered upon, the statute is violated. — Coggins v. The State, 7 Porter, 264; Holland v. The State, 3 Por. 292; Cochran v. The State, 30 Ala. 542; Webster’s Dictionary, “To play.”

The testimony recited in the bill of exceptions, shows that the defendant and the slave were seated on opposite sides of a box, each holding in his hand four, five, or more cards, — while beside them lay the pack, with the top card face-upwards. On seeing the witness, the defendant and the slave bunched the cards, and some expressions were indulged as to fortune-telling. This was all the evidence tending to prove the defendant’s guilt. We concede, that these circumstances may have been strong, and from them the jury may have inferred that the parties had seated themselves to play at cards, and had so far entered upon the game as .to deal out hauds and turn up a trump ; yet, in order to establish the defendant’s guilt, it was necessary that the j ury should find a further fact or facts than were positively sworn to by the witness. Such further fact or facts, the law, unassisted by a jury, could not infer. We think the. court, in its charge, invaded the province of the jury. — Ogletree v. The State, 28 Ala. 700 ; Scitz v. The State, 23 Ala. 42; Morgan v. The State, 33 Ala. 413; 1 Bish. Cr. Law, § 251.

Revei-sed and.remanded.