
    Townsend v. The State.
    
      Indictment for (laming.
    
    1. Charge of court to jury; effect of evidence and reasonable doubt. — In the trial of a criminal case, although there is no conflict in the evidence as to the guilt of the defendant, a charge which instructs the jury that “If they believe the evidence (hey must find the defendant guilty,” is erroneous in not requiring the belief of the evidence to the exclusion of all reasonable doubt.— (Jones v. State, 96 Ala. 56, announcing a contrary principle, overruled).
    2. indictment for gaming; variance between allegations and proof. Where the complaint or indictment upon which a defendant is tried charges that 1he defendant and nine other named persons played at a game with cards or dice, or some device or substitute for cards or dice, in a highway or some other pub-lice place, the defendant can not be convicted upon evidence which showed that two of the persons named in the complaint or indictment did not play in the same game with the defendant, but played in another game at the same place and the same time; the variance between the allegations of the com.plaint or indictment and the proof being fatal.
    Appeal from tbe County Court of Macon.
    Tried before tbe Hon. M. B. Abercrombie.
    Tbe facts of tbe case are sufficiently stated in tbe opinion.
    Wood & Martin, for appellant.
    There was a fatal variance betunen tbe allegations of tbe complaint or affidavit upon which the defendant in this case, was tried, and tbe. proof, and for that reason tbe defendant was wrongfully convicted. — McOehee v. State, 58 Ala. 360; Elliott v. State, 26 Ala. 78.
    
      Massey Wieson, Attorney-General, for the State.
    Where several are jointly indicted for the same offense if the proof shows that one of the defendants, or any number of the defendants less than the whole, are guilty, they may he convicted and the others acquitted. In this case the proof showed without conflict that the defendant, Silas Townsend, was guilty as charged. It was of no benefit to him that the proof did not go further and show that the other defendants who were jointly charged with him were also- guilty. — Ward v. State, 22 Ala.. 1'6; 1 Bishop on Grim. Pro. (3d ed.), §§ 465, 472; 10 Eneyc. PI. & Pr. 55-4 and notes; ShelbyviUe, etc. Co. v. Conimonir.ea.lth, 9 Ky. Law Nep. 244; Boies v. State, 2 McMul. (8. 0.) 252; Broion v. State, 13 Tenn. (5 Yerg.) 307; State v. Clayton, 11 Nidi. Law (S. C.) 581.
   TYSON, J.

It is true there is no conflict in the evidence as to the guilt of the defendant, but the credibility of the witnesses was matter for determination by the jury. It was, therefore, error for the court at the written request of the solicitor to instruct the jury that if they believe the evidence, that they must find the defendant guilty. This instruction, required his conviction though the jury may not have believed the evidence beyond a reasonable doubt. — Jackson v. The State, 106 Ala. 12; Carr v. The State, 104 Ala. 4; Shields v. The State, Ib. 35; Harris v. The State, 100 Ala. 129; Pierson v. The State, 99 Ala. 148; Heath v. The State, Ib. 179. A charge in exactly the same language as tliis one was held proper in Jones v. The State, 96 Ala. 56. But the court in considering it evidently overlooked the infirmity we have pointed out and 'which, in the later decisions cited above, was held to render it had and the giving of it to he1 reversible error.

The affidavit upon which this defendant was tried and convicted charged that he and nine other persons therein named played at a. game with cards or dice, or some device or substitute for cards or dice in a highway or some other public place.

■The evidence undisputedly showed that Ovo of the persons named did not play in the same game with this defendant, but played in another game at the same place and at the same time. This fact clearly brings the case within the principle that was allowed to control in Elliott v. The State, 26 Ala. 78, and McGhee v. The State, 58 Ala. 360. Bee also Johnson v. The State, 44 Ala. 414; Cox v. The State, 76 Ala. 66; Lindsey v. The State, 48 Ala. 169.

This defendant and those playing in the game with him should have been proceeded against separate and apart from the others wlio played in a different game, or the prosecution should have been against each separately.

Reversed and remanded.  