Opinion
7 Div. 323.
February 22, 1938.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Joe Levoy was convicted of operating a gambling device, and he appeals.
Affirmed.
L. B. Rainey, of Gadsden, for appellant.
A. A. Carmichael, Atty. Gen., and B. W. Simmons, Asst. Atty. Gen., for the State.
There is no bill of exceptions, therefore, charges requested based upon the evidence will not be considered.
The complaint was in two counts. The first of which charged that the defendant did possess, keep, own, set up, operate, or conduct, or did permit to be set up, operated, or conducted a gambling device, contrary to law. The second count charged that the defendant "did set up, carry on, or operate a wheel of fortune, slot machine, or a device of chance," etc.
No demurrers were interposed to the indictment, and it is now contended that the indictment is void and will not support a conviction.
Without discussing the merits of the contention regarding the first count of the indictment, the contention of the defendant must fail, for the reason that no question of merit is raised as to the second count. This count, undoubtedly, charges an offense under section 4238 of the Code of 1923 with sufficient certainty, and the verdict of the jury, generally, will be referred to the good count.
There is no error in the record, and the judgment is affirmed.
Affirmed.