The testimony for the State tended to show that the defendant and two others, one of whom was the jailer, bet at a game played with cards, in a room *129on the lower floor of the county jail building; that the room in which said game took place was the second room from the back of the jail on the first floor; that the upper story of the building was the jail (or prison) ; there were dwelling rooms below, and that there was no fence or enclosure around the jail.
The evidence for defendant tended to show that he and the other persons mentioned as having played and bet at cards, did not so play or bet, at that or any other game at the time referred to; that at the time, the jailer, Bolpli Wright, lived in the jail; that he kept his bed and clothes in the room where the game ivas said to have been played, and lived and slept in said room; that no one stayed with him in said room, except, now and then, his Avife; that he occupied it regularly and kept it locked when away from it and no one else stayed in the loAver story of the jail. All the prisoners Avere kept in the upper story.
The AA'itness, Wright, for defendant, denying that defendant played Avitli or bet at cards, on the occasion referred to, testified that he, witness, had a book in the room and some paper checks, and defendant and another Avere looking at this book and handling these checks, Avhieh were about as large as, and of the size of playing cards. The defendant’s attorney asked the witness,' “What Avas done with the book you have testified about ?” The court properly sustained an. objection to this question. It was wholly irrelevant to the issue in the case. McCormack v. State, 102 Ala. 161.
When defendant was being examined as a witness for himself, his counsel asked him: “What did you and Mat Holmes and Dolph Wright [parties with whom the State’s evidence tended to show defendant played cards] go to the room for, at the time testified about?” The court refused, on objection of the solicitor, to allow the question answered, and in this there was no error. The question called for a secret, uncommunicated motive or intention of the witness. Besides, it did not matter what the parties went to the room for, if they played and bet at cards after reaching the place. For the same reason, the other question asked the witness was im*130proper,, viz.: “Did you go to .the room on the occasion testified about to play cards?”
In the statute against gaming (Code, § 4792) certain houses are to be considered public houses, viz.: “any tavern, inn, storehouse for selling or retailing spirituous, vinous, or malt liquors, or house or place where spirituous, vinous, or malt liquors are retailed, sold or given away.”—Windham v. State, 26 Ala. 69; Pickens v. State, 100 Ala. 129. Any other houses except those specifically named, are not per se public houses, but may become such by force of circumstances, and whether they are public or not in any given instance, is a question for the jury, under the evidence.
A jail house, in the sense that it is built and owned by the public, is a public house, but this is not the sense which determines its character in the statute against gaming. Although a house may be built and owned by the public, it may be private notwithstanding. A public house, as has been said, is one “which is commonly open to the public, either for business, pleasure, religious worship, the gratification of curiosity or the like.” When tried by such a test, a jail, as a matter of fact, is not generally a public house.
The evidence in this case as to the character of the jail and the bed-room where it is said the playing took place is without conflict. There was no fact brought to light, which tended to show that the jail itself or the said room in it were public, but for aught appearing they were private.—State v. Alvey, 26 Tex. 155.
On the evidence introduced the court, as requested by defendant, should have instructed the jury to find the defendant not guilty.
Reversed and remanded.