
    Lee v. The State.
    
      Indictment for Gaming.
    
    1. Q-aming; wliat constitutes public place. — A place in the yard of a private house, forty feet away from the public road, open to observation from persons travelling the public road is a public place within the meaning of the statute against gaming, (Code, § 4792); and in playing 'with cards or dice at such a place, a person violates said statute.
    Appeal from the 'Circuit Court of Jumes tone.
    Tried before the lion. Osceola Kyle.
    The appellant in this ease was indicted, tried and convicted for playing at a game with cards or dice at a public place.
    The witness for the State testified that on a certain day within 12 months before the finding of the indictment he was going along a' public road in Ifimestone county and that as he passed the residence of Jordan Matthews he saw the defendant, and Jordan Matthews on the ground, and Alfred King sitting, on the steps of the house, and that all three of them were playing dice; that they had two dice and were throwing them; that the house of Jordan Matthews is situated from 20 to 40 feet from the public road, and that said dice playing was in plain view of said public road, and that the defendant and the two other persons who were playing dice were in plain view from the public road, and it could be easily seen that they Avere playing dice; that the house of Jordan MattheAvs Avas separatee! from the public road by a fence.
    The defendant, as a Avitness in his own behalf denied that he was playing with dice at the house of Jordan Matthews, on the day designated by the witness.
    The court in its general charge to the jury among other things instructed them as follows: “I charge you as a matter of Iuav that if this defendant played with dice at a place Avithin thirty or forty feet of a public road, as the evidence of the State tends to show, and if it, could be easily seen by those passing along said, road, then that, under the law, is a public place.” To the giving of this portion of the court’s general charge the defendant separately excepted.
    W. R. Walker, for appellant,
    cited Campbell v. State, 17 Ala. 369; Roquemorc v. State, 19 Ala. 528;. Coleman v. State, 20 Ala. 51; Clark v. State, 12 Ala. 492; Smith v. State, 52 Ala. 284; Taylor v. State, 22 Ala. 15; Henderson v. State, 59 Ala. 89; Graham v. State, 105 Ala. 130; Finnem v. State, 115 Ala. 106.
    Massey Wilson, Attorney-General, for the State,
    cited Ford v. State, 123 Ala. 81; Finnem v. State, 115 Ala. 106; Franklin v. State, 91 Ala.. 23; Henderson v. State, 59 Ala. 89.
   McOLELLAN, O. J.

Within the meaning of section 4792 of the Code, a place in the yard or curtilage of a private house, forty feet away and open to observation from a public highway — so near and so open that persons traveling the highway can see card or dice playing thereat — is abstractly and per se a public place, and to be so declared by the court as matter of law. The circuit court did not err in giving the charge excepted to by the defendant. — Ford v. State, 123 Ala. 81; Franklin v. State, 91 Ala. 23; Henderson v. State, 59 Ala. 89.

Affirmed.  