
    BASS vs. THE STATE.
    [rSDICTMBST VOR B15TTIN& AT TEN-FINS'.']''
    1. Conviction on testimony of 'accomplice.* — Under the-act'of 1854, (Sessióh Acts, 1853-54, p. 30,) as amended by the act' of 1858, (Session Acts, 1857-58, p. 287,) it is the hotting at ton-pins, and not merely playing the game, that constitutes the offense; consequently, a person who engages in the game, and does not participate in the betting, is not an accomplice, within the meaning of section 3600 of the Code, which forbids a conviction on tbe'uncorroborated testimony of an accomplice.
    2. When objection to grmicl jury may be made. — The objection cannot bo raised for the first time in the appellate court, that the record fails to show that the grand jurors were regularly selected and summoned.
    3. Constituents of offense. — To constitute the offense of betting at tenpins, (Session Acts, 1857-58, p. 267; ib. 1853-54, p. 30,) it is not necessary that the game should be played at one of the places enumerated in section 3243 of the Code.
    
      Flom the Circuit Court of Covington.
    Tried before tbe Hon. Jno. K. Henry.
    ■The indictment in this case charged, that tbe defendant, within twelve months before the finding of the indictment, and after the 8th February, 1858, “bet at ten-pins, or some such game, which betting was not for the game.” The defendant demurred to the indictment, for duplicity, for uncertainty, because it did not sufficiently describe the offense, and because it did mot allege that the game was played at.one of .fire places.specified in section 3243 of the Code; but his demurrer was overruled. “ On'the trial,” as the bill.of exceptions states, “ the State introduced one Kue as a'.witness, who testified, that the defendant and one Carson, wvsithin twelve months before the-finding of the indictment, .agreed to roll a game of den-pins at a public alley .in .tbe town of Andalusia in said county, and bet the feed of two yokes, of oxen for three weeks on the result of said game;; that Carson asked him to roll ¡the.game for him; that*he and Carson rolled said game against defendant and another person, whosemame he did not recollect.; that they went to the .bar several times during .thejgame, and drank, liquor ; that Carson won the game, and a controversy then arose between him and tbe defendant, as to the construction of tbe bet; that the game was played in Covington county, on a public alley in tbe town of Andalusia, which was kept for play and pay, within twelve months before tbe finding of the indictment; that he had no interest whatever in the bet made on the game, or for the alley fees, or for the liquor drunk; that he paid for nothing, and neither won nor lost anything on the game ; and that his only connection with the game was to join in the rolling for Carson, and at his request.” The defendant asked the court to instruct the jury, “that if they found, from the evidence, that the witness Rue was engaged in rolling the game for Carson, and did nothing but roll for him, and took no part in the betting, but drank with the others at the conclusion of the game, he was an accomplice, and they •'Gould uot Convict tbe defendant oh his uncorroborated testimony.” The court refused this charge,-aod-the defendant excepted to its refusal.
    ÍÍOHN McCaskill, for the 'defendant.
    M. A. BALDWIN, Attorney-General, contra.
    
   R. W. WALKER, J.

The test, by which to detei'ihih'e whether a witness, who has 'been introduced by the' State, is an accomplice within the meaning of section 3600 of the Code, is the inquiry, could the witness himself have beeh-indicted for the offense, either as principal or accessory ? See Davidson v. State, 33 Ala. 350 ; Bouvier’s Dict., “Accomplice.” Under ''-the act of February 17, 1854, (Acts 53-4, p. 30,) as amended by the act of February 8, 1858, (Acts ’57-8,'p. 267,) itls the betting at ten-pins, and not merely playing the game, that constitutes the offense. As •the witness did not bet, and was not Concerned in the bets t-made by others who 'took part-in the game, he could not have been indicted; and, 'therefore, was"not an accomplice.

The objection,'that the record fails to'show that i-tbe grand jury was regularly sllected and summoned,-cannot be made for tbe firsttime in this court. — Code, § 3591; Shaw v. State, 18 Ala. 549; Nugent v. State, 19 Ala. 540 ; Floyd v. State, 30 Ala. 511; Russell v. State, 33 Ala. 366.

It is not necessary to constitute the offense of bet<ting at ten-pins, that the playing should take place at one of the places enumerated in section 3243 of the Code. -Hence, the objection to the indictment was-not well taken.

► Ju dgment- affirmed.  