¶1This was an indictment against the defendant, Mills, for gaming, playing cards at “a public place.”
¶2Tbe court charged tbe jury that, if they believed tbe evidence, they must find tbe defendant guilty. This renders it necessary that we should set out tbe evidence, which is shown by a bill of exceptions as follows:
¶3*88Several neighbors were invited to assist one Whitehead in shucking his corn. After they had finished, the defendant and one Anthony made up a fire outside of the yard, but within a few steps of the fence, in a lane leading to the house, and there engaged in playing cards. It appears that some little boys were playing at marbles by the same light, while four or five persons were standing around, and some passing about. Whitehead, who was introduced by the defendant, testified that he refused to let them play in the house, but gave his permission to let the defendant play where he did; that said lane was a neighborhood road leading to his house, and that the playing took place some time in the night.
¶4The question in the court below, and that which is made here, as involving the sufficiency of this evidence, conceding it to be true, is, does it show that the playing was at such a public place as is contemplated by the statute ?
¶5The statute inhibits the playing 11 at any tavern, inn, store house for retailing spirituous liquors, or house or place where spirituous liquors are retailed or given away, or any public house or highway, or any other public place, or in any out house where people resort,” &c.
¶6We do not entertain a doubt that this playing was at a public place, and that the object of the statute would be frustrated, if gaming could be thus exhibited upon a neighborhood road, near the assemblage of a number of persons, and where they may witness it at pleasure.
¶7The more plausible objection to a conviction is, that the road is a highway as contemplated in the statute, which would make a variance between the proof and the indictment; but. we think by the term “ highway,” as used in the statute, the Legislature meant a public road, that is, a road dedicated to, and kept up by the public, as contra-distinguished from private ways or neighborhood roads, which are not so kept up.
¶8The case of Clarke v. The State, 12 Ala. Rep., 492, is not opposed to the view here taken. There the playing was in a shop, closed and made private by the exclusion of the public. Here, upon a road which the neighbors were accustomed to travel, and at a time when they were passing.
¶9Let the judgment be affirmed.