124 S.W. 930 | Tex. Crim. App. | 1910
Under the authority of Chancellor v. State,
"Error is properly suggested in regard to the court, instructing the jury, if appellant bet at cards, he would be guilty; the punishment being not less than $10, nor more than $50, when in fact he confined their consideration to betting at a game played with cards. The statute provides that where the betting was on a gaming table or bank, the punishment is not less than $10 nor more than $50, and may in addition to said fine impose a jail penalty of not less than ten nor more than thirty days. In other words, the State charged appellant with one offense, and the State's evidence supports that charge, and the jury were instructed to convict upon another phase of the statute, not included in the count submitted to the jury. One offense was charged, and another submitted, and the conviction is, therefore, not authorized."
The facts of this case are clearly brought within the rule laid down in the Chancellor case, supra, and the conviction can not, therefore, be sustained.
For the error pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.