¶1Whether the defendant and others, who played cards on a certain alternoon, about two hundred yards from the post-office at Loango, and seventjr-five or one hundred yards east of the Evergreen road, in the presence of the witness Oassady, were the persons seen by the witness Deens from that highway that afternoon, seated on the ground, while other persons were standing around — the distances and directions being the same — was a question for the determination of the jury, the evidence of these and other witnesses tending, as the bill of exceptions shows, to identify the time and place testified to by Deens with that spoken of by Oassady ; and it is very manifest that the court properly submitted all this evidence to the jury.
¶2The only other exception reserved goes to the action of the *25court in refusing to give the following charge, requested by the defendant: “ It is a violation of the law to play at a game of cards or dice in a public road. To be in a public road, within the meaning of this law, the parties playing at such game must be in the road, or so near to it as to be seen and recognized by persons passing along the road, and near enough for such persons to see that they are engaged in playing cards or dice."’
¶3One fault of this instruction, sufficient in itself to justify the ruling of the trial court upon it, is the proposition which it contains, that, to constitute a playing in a highway, within the meaning of the statute, “ the parties playing at such game must be in the road, or so near to it as to be seen and recognized by persons passing along the road.” The tendency of this was necessarily to mislead the jury. Whether the players were recognized of not, is wholly immaterial. It might well be that they were too far from the road to be personally recognized by their acquaintances passing along the highway, and yet sufficiently near for travellers to see that they were engaged in a game of cards; and we understand the law to be, that any playing with cards, &c., in, or sufficiently near a highway, for the playing to be seen therefrom, is within the statute. Smith v. State, 23 Ala. 39; Henderson v. State, 59 Ala. 89.
¶4The judgment of the Circuit Court is affirmed.