majority">COLEMAN, J.

The defendant was indicted, tried and convicted for violating section 4052 of the Criminal Code, which prohibits gaming with cards or dice, at certain designated places. There was but one witness examined, and the evidence was without conflict. The venue and playing were proven, and the question is whether the playing took place, at a public house, or public place, or place where spirituous liquors were sold or given away, within the meaning of the statute.

First: Did the parties play in a public house? We think not. The house was called a blacksmith shop. We have no doubt that a shop or house in which blacksmithingis done for the public, or a house where the public are invited to bring their work, and it was thus understood at the time of playing, although no one may have patronized the shop, would be covered by the statute. The character of the house is not determined so much by the patronage it receives, as by the use to which it is appropriated. Were the public invited there? and was it true that the public could have their work dofteat that shop? The proof shows that the owner used this shop as his own private shop, and that at no time had. any one else, or the public, had any work done there. The playing *132was not in a public house.

Second : Was it a public place? The shop was about twenty feet from the public road with one door fronting on the public road, and a back door fronting toward the Alabama Midland railroad, which was from seventy-five to one hundred yards distant. A “highway,” as designated in the statute, means a public road. The shop with its door fronting on • the public road was situated sufficiently near to the public road to bring it within the influence of the statute, either as a “highway” or “public place,” if there were no conditions which excluded this result. The proof shows that the front door was closed, and no one could see inside the shop at the time, except by looking through a crack. There is no evidence that any other game had ever been played in the shop. There were only four persons present, two who were playing, the witness and the owner of the shop, who did not engage in the game. It is fairly inferable that the playing took place after dark, by the use of a lamp. Upon this state of facts, the court could not declare as a conclusion of law, that the place was in a “highway” or “at a public place.”—Comer v. The State, 62 Ala. 320; Glass v. The State, 30 Ala. 529; Napier v. The State, 50 Ala. 169; Coleman v. The State, 59 Ala. 52.

Third : The evidence shows that while in the shop

the owner gave the parties a drink of whiskey. There was no evidence tending to show that the defendant, or .any other person, ever had spirituous, vinous or malt liquors in the shop at any other time or other occasion. 'This one act, under the circumstances, did not; constitute ■.the shop “a house or place where vinous, spirituous or malt liquors were retailed, sold or given away,” within the meaning of the statute.

The court erred in giving the affirmative charge for the State.

Reversed and remanded.

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