The courts do not judicially know what constitutes a policy game or racket. Hallmark v. State, ante, p. 416, 185 So. 908. The question whether a transaction or series of transactions is a lottery is dependent upon the facts surrounding the transaction, and a witness cannot give his conclusion that such transaction or transactions constitute a lottery, as such conclusion would invade the province of the jury. Hallmark v. State, supra; Grimes v. State, 23 Ala. App. 518, 128 So. 122; Harris v. State, 31 Ala. 362. An expert witness may testify as to whether apparatus or paraphernalia is suitable for use in violating the law as to the particular offense charged, but he cannot substitute his opinion for that of the jury and testify that it was or is so used. Griggs v. State, 18 Ala. App. 467, 93 So. 499; Harris v. State, supra; Hallmark v. State, supra.
Sullivan v. State, 19 Ala. App. 484, 98 So. 323; Code 1923, § 3615; Jackson v. State, 229 Ala. 48, 155 So. 581. The State's evidence wholly failed to make out a prima facie case against appellant. He was due the affirmative charge and likewise was entitled to have his motion for new trial granted. Hallmark v. State, 28 Ala. App. 416, 185 So. 908; Id., 240 Ala. 138, 198 So. 149; Snitzer v. State, 29 Ala. App. 597, 199 So. 745; Fitts v. State, 29 Ala. App. 323, 195 So. 561. Charge 2 states the law; its refusal was error. Hallmark v. State, supra. Appellant was charged with being a professional gambler in Jefferson County. Evidence of the character of a place in Shelby County where appellant was said to have been was illegally received.
This was a conclusion of the witness. Hallmark v. State, 28 Ala. App. 908, 185 So. 908. It appearing, from cross-examination, that the witness was unfamiliar with the subject, about which he testified, his testimony was due to be excluded on motion. Testimony shown to have been based on hearsay should be excluded on motion.
A mere glimmer or scintilla of evidence is not sufficient to carry the case to the jury. Austin v. State, ante, p. 327, 195 So. 566; McPherson v. State, ante, p. 278, 196 So. 739; Fitts v. State, ante, p. 323, 195 So. 561; Reynolds v. State, ante, p. 139, 193 So. 192; Hallmark v. State, 28 Ala. App. 416, 185 So. 908; Id., ante, p. 405, 198 So. 149; McLean v. State, 16 Ala. App. 196, 76 So. 480. The State must show defendant did not have regular employment. Reed v. State, 16 Ala. App. 646, 81 So. 138. The fact that defendant occasionally associated with or was frequently seen associating with gamblers would not be sufficient evidence, alone, and of itself to warrant a conviction; and the proof offered concerning his occasional association with some person or persons who had the reputation of being gamblers is clearly insufficient.
The evidence was insufficient to support a conviction. Hallmark v. State, 28 Ala. App. 416, 185 So. 908; Wallace v. State, 16 Ala. App. 85, 75 So. 633; Valverdi v. State, 21 Ala. App. 606, 110 So. 594. If the evidence of the State proved the existence of a lottery, there must have been evidence connecting defendant with the crime. Nelson v. State, 24 Ala. App. 245, 133 So. 747; Wooster v. State, 55 Ala. 217; Reynolds v. State, 28 Ala. App. 556, 189 So. 793. A gambler is one who follows or practices games of chance or skill with the expectation of thereby winning money or other property.
Veasey v. State, 20 Ala. App. 478, 103 So. 67; Townsend v. State, 18 Ala. App. 242, 90 So. 58; Davisdon v. State, 167 Ala. 68, 52 So. 751, 140 Am.St.Rep. 17; Hunt v. State, 135 Ala. 1, 33 So. 329; Turner v. State, 124 Ala. 59, 27 So. 272; Patterson v. State, 146 Ala. 39, 41 So. 157; Gilbert v. State, 20 Ala. App. 565, 104 So. 45. A witness cannot substitute his judgment for that of the jury and give his conclusion as to the effect of a transaction. Hallmark v. State, ante, p. 416, 185 So. 908. Where a complaint or indictment charges several offenses of the same nature, and the prosecution has introduced evidence of one distinct offense, and fixed its time and place, the proof should be confined thereto, and evidence of another distinct and substantive offense cannot be admitted. Cochran v. State, 30 Ala. 542; Johnson v. State, 19 Ala. App. 141, 95 So. 583; Baker v. State, 19 Ala. App. 437, 97 So. 901; Brown v. State, 18 Ala. App. 275, 90 So. 278; Ex parte State ex rel. Davis, 206 Ala. 546, 90 So. 278; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782; Williams v. State, 77 Ala. 53; Gladden v. State, 22 Ala. App. 85, 112 So. 541. Cross-examination of defendant as to the commission of a crime other than the one for which he was being tried was error.
Like language is sufficient in an information or complaint filed by the prosecuting attorney. Hallmark v. State, 1939, 28 Ala. App. 416, 185 So. 908. Cf. Mitchell v. State, 1961, 41 Ala. App. 254, 130 So.2d 198, 202, 204.
Where defendant is not a witness, it is reversible error to show prior arrests made by State's witnesses. Lyons v. State, 32 Ala. App. 44, 21 So.2d 339. An occasional gambler or one having the reputation of being such, is not proof that defendant is a professional gambler. Hallmark v. State, 28 Ala. App. 416, 185 So. 908; Wallace v. State, 16 Ala. App. 85, 75 So. 633. Si Garrett, Atty. Gen. and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.
In the case of Flandell v. State, 31 Ala. App. 520, 19 So.2d 401, we held in effect that the offense of vagrancy may be established by proof of a violation of any one of the subsections set out in the code section, supra. See also, Brannon v. State, 16 Ala. App. 259, 76 So. 991; Brown v. State, 4 Ala. App. 122, 58 So. 794; Hallmark v. State, 28 Ala. App. 416, 185 So. 908. The question of the sufficiency of the evidence to sustain the judgment of conviction is raised by the request for the general affirmative charge, a motion to exclude the State's evidence, and a motion for a new trial.
Defendant's pleas of not guilty cast upon the prosecution the burden of proving defendant's guilt beyond a reasonable doubt. Pinson v. Birmingham, 24 Ala. App. 482, 136 So. 868; Hallmark v. State, 28 Ala. App. 416, 185 So. 908. The burden of proof does not shift to defendant on a charge of vagrancy until the prosecution proves beyond reasonable doubt that defendant is able to work. Hoyle v. State, 23 Ala. App. 130, 122 So. 183. The evidence is wholly insufficient to prove the charge made, and defendant's motion to exclude was proper.