
    COLEMAN et al. vs. THE STATE.
    1. The assemblage of eight or ten persons by invitation, at a private house or room, to which the public have not the right to go, for the purpose of playing cards, or participating in social amusements, does not constitute sueh house or room “ a public place,” within the statute against gaming.
    2. If the occupants of a room are in the constant habit of inviting a number of persons to their room for the purpose of playing cards, and others are allowed to come uninvited without any restraint, it is testimony tending to prove the Toom “ a public place,” and the jury may so find it.
    Errok to the Cbcuit Court of Sumter.
    Tried before tbe Hon. ¥m. B. Smith.
    Bliss & Baldwin, for plaintiffs in error.
    M. A. BALDWIN, Attorney General, for tbe State.
   DARGAN, C. J.

Tbe plaintiffs in error were indicted and convicted of “playiny cards at a public place.” Upon tbe trial it appeared, that tbe playing took place in a room over a vacant store, wbicb was occupied by several young men as a bedroom; that they frequently invited their acquaintances there for tbe purpose of playing, but no one bad tbe right to come without being invited by some one of tbe occupants of tbe room; that their invitations extended to their friends and acquaintances only, and that they did not intend to make tbeir room public, but considered it their private bed room. It was further shown, that some eight or ten persons were present at the time the playing took place, and one of the witnesses, who was present, stated that he did not remember whether he was invited or not. It was further shown, that though the doors were usually shut, it was not usual that they were locked or so fastened, as to prevent one from entering the room.

Upon this evidence the court instructed the jury, that prima facie a bed room was a private place, but it might be made public, and if they believed that eight or ten persons were present in the room whilst the playing was going on-some playing and others by-standers — the doors not being locked, then such an assemblage made it a public place; and if the defendants played at that time, or afterwards before the room resumed its private character, they might be convicted of playing at a public place. The court further instructed the jury, that if they should find that frequently, before and about the time of the playing, five or six persons were in the room playing, although they went by invitation, and one or more persons who were not invited were there as by-standers, and had found the door unlocked, and entered without difficulty, then they might find the room' a public place within the meaning of the statute. These are the only instructions given by the court 'to the jury that we think it necessary to examine.

We folly agree with the court below, that though a bed chamber is prima facie a private place, yet it may be made public within the meaning of the act; but the second branch of this first charge (if we construe it properly), conveys the idea that the presence of eight or ten persons, who were there by invitation, the doors not being locked, would make it a public place.

• In this, we think, the Circuit Court mistook the law. I will not undertake to lay down a general, rule, by which we shall, in all cases, determine whether a place is public or not. But we cannot hold that the assemblage of eight or ten persons at a private house or room, by invitation, and to which the public have not a right to go, for the purpose either of partid-pating in tbe amusements going on, or partaking in tbe social enjoyments, will constitute sucb private bouse or room a pubbc place, witbin tbe meaning of tbe act. If we were to bold this, we should be governed in our opinion by tbe number of persons alone, in determining whether tbe place was pubbc, without regard to any other consideration. This, I think, would be improper; but we must look to tbe character of tbe place, tbe manner of ingress to it, as well as tbe number of persons that are, or do assemble at it, in deciding whether it is public or private. ■ Suppose an evening party given, at which a dozen or more were assembled by special invitation, but to which no one could go unless invited, without violating tbe rules of projmety, would this constitute tbe bouse a public place? We think not. We cannot bold that a private bouse or a bed room, at which even a dozen or more are assembled by invitation, loses its character of privacy, and becomes thereby a public place. Nor do we think this view inconsistent 'with the case of Campbell v. The State, 17 Ala. Rep. 369. The place in that case was a shoemaker’s shop, to which the public had the right to go, at least during the day; and though the playing took place at night, yet it was shown that during the playing many persons, without invitation, passed in and out without restraint, though others were refused admittance. These ingredients, as well as the number assembled, were considered by the court, in holding it a pub-bc place; but the part of the charge we are considering would make any place public, if eight or ten were assembled together, without regard to any other consideration. This, we hold to be erroneous.

We cannot say, however, that the second instructions given to the -jury, were wrong; for if the occupants of a room are in the constant habit of inviting a number of persons — say five or six — for the purpose of playing cards, and to which others are allowed to go without being invited, and without restraint, it is certainly testimony tending to prove the room a public place, and a jury may so find it. To hold otherwise, might enable those who wished to follow the practice of gaming, even as an occupation, to escape the law, by having their beds in the room at which the gaming was carried on.

In reference to tbe charge wbicb we bave not particularly noticed, it is enough to say that we can perceive no error in them. Tbe only error is in tbe first instructions, and for this, tbe judgment must be reversed, and tbe cause remanded.  