Pike v. State

Decided January 15, 1860

Supreme Court of Alabama · decided 1860-01-15

Prom the Circuit Court of Marengo. Tried before the Hon. A. A. Coleman. The indictment in this case charged, “that Levi Pike exhibited feats of sleight of hand, without first obtaining a license therefor, and contrary to law.” After conviction, the prisoner moved in arrest of judgment, “ on the ground that the indictment is defective in not showing that the feats of sleight of hand were exhibited for profit.” The court overruled the motion, and the prisoner excepted.

Relies on Spaight v. State

Decided 1860-01-15

R. W. AY ALICER, J.

¶11. Under sections 397-9 of the Code, it Avas not necessary for the indictment to allege, nor for the State to prove on the trial, that the exhibition was for profit. — Spaight v. The State, 29 Ala. 32.

¶22. AYhat was said by the defendant during the exhibition,Rvas a part of the res gesta, and Avas proper to be considered by the jury in assessing the fine. It appears that the fine imposed was not the minimum fine allowed in such cases ; and we cannot say, therefore, that the defendant Avas not injured by the exclusion of the evidence alluded to.

¶3Judgment reversed, and cause remanded.