¶1The testimony on behalf of the state tended to show that defendant, with others, bet on a *118game played, with, cards in the daytime within 15 steps of a public road, and that they could be and were seen by the witnesses, while in the public road, who testified to these facts. The testimony in behalf of defendant tended to show that he, and those with him, were not playing any game, that there was no betting, and that, if they had been playing, it could not have been seen from the public road.
¶2One of the essential-elements of the offense necessary to be established to the satisfaction of the jury by that degree of proof required in criminal cases, it is apparent, is whether the place as testified to by the state’s witnesses was a public one. The charges refused to defendant proceed upon the theory that it was not, if the game and betting on it could not be seen by ordinary observation from the public road. In other words, although the game and betting' may have been seen by a careful observer traveling along the road, and not seen by one less observant, the place would not be a public one. We do not think this is the law. The rule is that any playing with cards, etc., in or sufficiently near a highway for the playing to be seen therefrom, is within the statute. — Franklin v. State, 91 Ala. 23, 8 South. 678, and cases there cited.
¶3Affirmed.