Opinion
6 Div. 518.
March 3, 1953.
Appeal from the Circuit Court, Jefferson County, Alta L. King, J.
Gibson, Hewitt Gibson, Birmingham, for appellant.
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.
It is permissible to show that defendant has associated with persons who have the reputation of being professional gamblers. Code 1940, Tit. 14, § 437 (6); Brannon v. State, 16 Ala. App. 259, 76 So. 991; Id., 201 Ala. 695, 77 So. 999; Hill v. State, 23 Ala. App. 451, 127 So. 791; Id., 221 Ala. 61, 127 So. 792; Flandell v. State, 31 Ala. App. 520, 19 So.2d 401. It was not improper to show that defendant had been arrested several times for gambling. Charles v. State, 35 Ala. App. 83, 43 So.2d 844; Commonwealth v. Manuszak, 155 Pa. Super. 309, 38 A.2d 355. The offense charged is an habitual course of conduct. Code 1940, Tit. 14, § 437 (6); 1 Wigmore, Evi. (3d. Ed.) § 203.
In the court below the accused was convicted on a complaint charging vagrancy.
The State anchored the prosecution on subsection 6, section 437, Title 14, Code 1940; that is to say that the defendant was a professional gambler.
The court permitted the prosecution to prove that the appellant was seen gambling and that he frequently associated with gamblers. The introduction of this character of evidence is sanctioned by the authorities. Brannon v. State, 16 Ala. App. 259, 76 So. 991.
However, the State did not limit its inquiry within this evidential scope. Over the timely objection of the appellant, the court allowed proof that on occasions, within the twelve month period prior to the beginning of the prosecution, the defendant and his associates were arrested by the officers on a charge of gambling.
This identical question was before this court for review in the case of Lyons v. State, 32 Ala. App. 44, 21 So.2d 339, 340. In that case Presiding Judge Bricken wrote this for the court:
"But there has never been any rule of evidence, or any law, to permit the State, as here appears, to offer evidence to the effect that the defendant had been formerly arrested by the State's witnesses, which of necessity would tend to cast undue opprobrium upon the accused, who in this case never offered himself as a witness. There is a wide distinction between the words arrest and conviction. Arrests may be unduly made by active and overzealous peace officers; or by biased and prejudiced officers."
We have again given studious consideration to this holding. It appears to be logical and sound, and based on fairness and justice. We are not persuaded that we should depart from it.
It is ordered, therefore, that the judgment below be reversed and the cause remanded.
Reversed and remanded.