Lead Opinion
Article 557, P.C., makes it an offense for any person to bet at any game played with dice anywhere (Bowles v. State,
Article 563, P.C., makes it an offense for any person to remain in any place where any such game with dice is played. Appellant was convicted of this offense and his punishment assessed at the lowest prescribed by law.
Mr. Combest, the sheriff, and Mr. Bebout, his deputy, both swore they caught Elmo Barron, Dr. Nugent, Mr. Harris, Paul Huff and Jack Jones gambling with dice, playing craps in a certain room in the Paducah Hotel, in Paducah, Cottle County, Texas, on May 10, 1917, at about 10:30 o'clock at night and that these persons gambled with dice for from thirty minutes to about an hour; that these persons played on the floor; that appellant was in the room and remained therein practically all of the time this gambling was going on. They swore he sat on the bed during the time; that he did not himself play in the game.
Appellant himself swore, in substance, that he was in that room, and remained therein while said gambling was carried on from ten to twenty minutes; that the game was begun after he went into the room. He swore: "I stayed ten, fifteen or twenty minutes after the game started, may have been longer than that, but didn't stay long." He swore that said five persons named were all in the game, but that he did not sit on the bed, but on a machine in the room and that the gambling with the dice was on the bed and not on the floor.
Appellant has one bill of exceptions to this question asked by the county attorney: "What position were the men in on the floor?" and the answer: "All the men were playing on the floor except defendant." *Page 345 This is the whole of the bill except his objections that it was not shown that appellant was on the floor or playing.
He has another bill to this question by the county attorney: "When did you see the defendant come out of the room?" and his answer: "It was about five minutes before 12 o'clock when the defendant came out of the room." He objected to this because it was immaterial, irrelevant, etc. This is the full substance of the bill.
He has another to this question asked by the county attorney: "What did you hear?" and the answer: "I heard some one say that he would shoot so much." Appellant objected to this because it was not shown that appellant made the remark nor that he was in the room at the time.
Neither of these bills are sufficient to require their consideration. James v. State, 63 Tex.Crim. Rep.; Best v. State, 72 Tex.Crim. Rep., and authorities cited. But, even considering them in the light of the record, they are clearly the res gestae or facts and circumstances hovering around and immediately connected with the transaction occurring at the time and place of the main fact. It has all the time been held, as stated by Judge White in his An. P.C., sec. 1236, as follows: "All of which was said or done, or that which occurred at the time of the homicide (transaction), tending in the slightest degree to explain the transaction or conduct or motive of the parties is admissible." These questions and answers objected to were admissible.
Appellant has another bill which recites that on the trial "defendant offered the witness, Elmo Barron, who was present at the time of the alleged offense, and is in the position to know, if anybody knows, the facts in this case." The bill further alleges that he expected to prove by said witness that he was present on said occasion with the four other that it was begun about fifteen minutes before 1 o'clock; that shortly thereafter appellant got up and left the room; that the game was not played on the floor, but on the bed and that appellant during the time he was in the room sat upon a machine and not the bed. The county attorney objected to this witness testifying under article 791, C.C.P., which prescribes that persons charged as principals, accomplices or accessories, whether in the same or different indictments, can not be introduced as witnesses for one another — objecting that because he had been prosecuted, etc., for playing said game. The court sustained his objection and refused to permit the witness to testify. He has other bills showing that he offered the same testimony, in substance, by several of the other persons engaged in the game, but the court refused to permit any of them to testify. Appellant contends that the county attorney's objections were mere objections and not proof of facts which disqualified the witness. His contention may be conceded as well taken. If, as a matter of fact, said witnesses were principals, accomplices or accessories to the offense charged against appellant, article 797, C.C.P., provides that after they had been tried and convicted and their punishment was fine only, they may testify after they have paid the fine and *Page 346 costs. As stated, it may be conceded that the witnesses were competent to testify and that the court erred in not permitting them to testify; then the question is whether such error was material or harmless.
As stated, appellant himself swore that he was present and remained where the game was being played, as stated in his testimony above. Each of these excluded witnesses would have sworn the same thing, in substance. In other words, their testimony as well as all the other, without question and without doubt shows that appellant was present and remained a considerable period of time in the room where the game and gambling was carried on. The fact, if so, that he did not remain as long as the sheriff and deputy testified he did, or that he did not sit upon the bed, but a machine, and that the game was not played by the said persons on the floor, but on the bed, would not, and could not, have changed the result.
It is well established that a harmless error is not ground for reversal. Exclusion of the testimony of each of these witnesses was harmless and does not require or authorize a reversal. The punishment assessed was the lowest prescribed by law.
No other questions are raised which require discussion.
The judgment is affirmed.
Affirmed.
Addendum
The sole ground of appellant's contention in his motion for rehearing is, that under the statute (art. 563, P.C.), it is not made an offense to go into and remain in any place where a game with dice is being played unless such place is a gambling house or is commonly resorted to for gaming. He cites and relies upon Walters v. State, 58 Tex.Crim. Rep.. The statutes applicable and prescribing this offense were cited and given in the original opinion. It is unnecessary to repeat them. As stated and shown by authorities there cited, it is an offense for any person to bet at any game played with dice anywhere, whether in a private residence occupied by a family or not, and article 563 makes it an offense for any person to remain in any place where any such game with dice is played. The Walters case is not in point herein. In that case the charge was that appellant remained in Matilda Hagen's house, where a game of cards was being played by certain persons. The uncontradicted proof in that case was that said house was the private residence of the woman alleged and that it was not commonly resorted to for the purpose of gaming, that one game being the only game ever played therein so far as the testimony showed. It is not an offense to play cards and gamble in a game therewith at any private residence occupied by a family unless such private residence is commonly resorted to for that purpose.
In Purvis v. State, 62 Tex.Crim. Rep., this court expressly *Page 347
overruled the cases of Singleton v. State,
What Judge Ramsey said was meant by "any place" in said article 563 in said Walters case, is restricted to what was being decided in that case, that is, as to a game played with cards at a private residence occupied by a family which is not commonly resorted to for that purpose. It is not applicable to any place where a game with dice is played and betting thereon. It was obiter dictum as to any place where gambling is done with dice.
The motion is overruled.
Overruled.