*1 inference therefrom. The manda- drawn no other could have P., having tory provisions C. been violated C. State, representing duty attorney it becomes our Singleton State, W., 922; v. v. order a reversal. S. Sweet State, (2d) 370. 23 W. S. judgment
The is reversed and the cause remanded. and remanded.
Reversed foregoing opinion Appeals of the Commission of has Judges Appeals been examined of the Court of Criminal approved by the Court. H. R. Thomas v. The State. No. 17315. Delivered 1935. June Rehearing February 19,
State’s Denied 1936. *2 J., dissents.
Lattimore, case.
The states the Houston, Bernard, Kahn, Branch, E. H. all of H. E. T. and J. appellant. Attorney, Tigner, Barkley, K. H. C. District and G. Criminal Houston, Attorney, Assistant Criminal District both of William Attorney McGraw, General, Coe, Attorney Vernon Assistant Austin, General, Lloyd Davidson, Attorney, of and W. State’s for the State. Judge.
KRUEGER, appellant The was tried and convicted keeping being keeping interested in a offense of and building, room, purpose premises, place certain being bet, gamble place wager, on a horse race, punishment in the and his was assessed at confinement years. penitentiary State for a term of two thereof, indictment, omitting parts reads as The the formal June, Thomas, day 28th follows: “H. R. or or about State, un- county then and there A. D. in said did lawfully keep a interested in and was then and there building, premises, place' certain room and there situated bet, wager gamble purpose used as a people on a horse a where race and horse races and as bet, wager horse would then and there resort races.” testimony upon adduced the trial shows engaged River maintaining floor of on the second Building city Houston
Oaks situated in the on Fannin street quite a county, Texas, Harris a room and rooms number of resorted for the in this and elsewhere. The rooms were to be run
races placed paper upon tables which were sheets equipped with printed upon the name the race which sheets riding jockey track, of the horses and the name of the the name respective in the race that was to run either each room, person A after or elsewhere. who entered Texas looking sheets, if he desired make a bet on over the horses, up provided walk for that horse or would to window the man the window the horse and indicate to behind bet, whereupon person desired to he making bet, person behind the window would issue receiving bet, money ticket the amount of desired to be after and the amount of with the number and name of the horse money race bet written on the ticket. At the conclusion of the *3 winning the holding announced and those names of horses were go a tickets with named winner thereon would provided tickets. window therefor and cash their appellant’s contention is that the indictment does charge 625, C., contemplated under P. which offense article felony prosecution proceeded, is a article the offending guilty any guilty but that if he is of offense he is of against 649, misdemeanor, C., there- P. which is a subject- jurisdiction fore the district court did not have of question, matter. In order to arrive at a correct of the solution succeeding preceding we must look to all the articles relating gaming. statute betting C., any chapter at
Article 615 of P. relates to game of cards. game C., betting P. of dominoes.
Article relates to on game C., betting played P. with Article relates to on a dice.
Any person offending against of either of said articles guilty statute is of a misdemeanor. Code, chapter under which the Penal
Article 625 of said of convicted, any person “If reads as follows: any keep, any in or be in manner interested shall building, premises, place of room or for cards, wager, gamble or place dice or with purpose to bet or to gaming, dominoes, keep or to exhibit for the or whatsoever, bank, table, machine, any alley, device wheel or wager upon place or or as a resort to bet whatever, penitentiary anything in the he shall be confined regardless years, of whether than nor more than four less two banks, alleys, tables, games, any of the mentioned above devices, things wheels, law or machines, or licensed or as used for Any place be considered or device shall not. wagering, any gaming or or or to thereon, money if the same is anything or or of value is bet betting.” purpose or resorted to for the any C., person, or Article P. reads as follows: “No agent any corporation, any persons shall or association selling any place State, engage at or assist in or in this selling bookmaking any pool any by means of horse race or accept any person bookmaking, any aid other or take or bet or upon any taking accepting any race or or bet run, paced in to be trotted or this State.” any C., person or “No Article P. reads as follows: agent any any persons corporation, at or association bookmaking selling place State, by pool or means in this otherwise, any telegraph, telephone aid or assist shall wagering, betting placing or in offer- person other ing a bet any wager, anything of value on bet or bet of run, trotted, paced any horse race to at be State or elsewhere.” owner, agent
Article reads follows: “No permit any property lessee the same to this State shall wagering bookmaking pools or be used as a receiving assisting placing any any person or in bet receiving transmitting of value offer to bet run, paced any place trotted or at race *4 this State or elsewhere.” C., any 650, violates
Article P. reads follows: “Whoever as provision preceding fined not less of the three articles shall be dollars, and be than nor more than five hundred two hundred imprisoned ninety jail thirty nor than not less than more days.” statute, 647, 625, supra, general article a while
Article relating 648, horse 649, 650, supra, special to are statutes etc., just 646, betting races, as article races and the on horse C., relating betting special on football P. is a statute to betting relating games, C., on P. baseball and article case, could be appellant, If under the facts elections. 625, supra, then prosecuted and convicted under article people building, room, person provided where who might baseball, result wager football, or the to bet on article, al- prosecuted of an under said election could also be though betting racing, elections football, baseball, on Legislature had not mentioned or referred therein. If offense to include the book-
intended selling general statute, making, supra, pool article special have said so and obviated enactment of it could subject. on the Where two more articles of a statutes other, they apparently are in give each should statute conflict with all, possible, if so construed effect to each and general special statute and where there is a statute also a embracing special subject-matter, the same or similar stat- penal ute will control. A within statute matter not included by judicial read in so should construction be into it because Legislature. doing judiciary usurp the functions of the would legislative intent should from the words be ascertained dice, cards, itself. is a mis- the act To dominoes 615, 616, 618, supra, unless the demeanor under article building kept premises same is done on or in or room specifically purpose. supra, Inasmuch things prohibited, mentions the are which therein legislature it occurs to did to include us that not intend races, football, games, therein and baseball bookmaking, selling. pool If the State’s contention correct, then there would be a conflict between Articles 649, supra, give per- acts but we effect to all of the taining gaming, nullifying any, can which be done without general yield special then it follows that must statute statute, charged and the offense which the stands is but a misdemeanor the district court did have jurisdiction. See article P. C.
The words “or bet resort to wager upon anything (article 625) whatever” a clean is but ing up ejusdem clause in the construction of which the rule generis to, apply must be rule we resorted and when we find that it refers to and means nature acts like or similar specifically as those mentioned in article. not seem does racing, seriously reasonable that will one contend that horse bookmaking gambling similar nature as cards, dice, or dominoes. we have We believe what supported by said here the case this court in parte Roquemore Rep., W., Ex 60 Texas 131 S. Crim. *5 (N. S.) 1186, 32 L. R. A. and authorities there referred to. Legislature seems pro- that it the was intention of the operation
hibit and maintenance where those engaged 625, supra, in which at the time was gam- usually for commonly resorted to most enacted were houses, races and football bling horse and not in rooms and games. baseball appellant’s contention Having reached the conclusion reversed, sustained, judgment court trial be
should and the cause remanded. and remanded.
Reversed Judge. HAWKINS, Presiding MORROW, Judge; Krueger Judge foregoing prepared by opinion was Appeals. Appeals of Criminal Commission of Court regarding the Believing correct conclusion he has reached a opinion approved as presented, adopted and question his following opinion court, observations. additional with the 559), (formerly article was enacted Article P. C. present number under its and carried forward years after Article 625 of 1925. Two the revision which were enacted several articles enacted the Articles in the 1925 revisions as carried forward 649, engaged penalized who which one was 650 and bookmaking assisting selling, on selling, pool were made misde- these statutes horse races. Violations of meanors, enacted, and and were not offenses when Art. 625 was 1909; therefore, have been did not so until could not become contemplation Apparently when Art. 625 was enacted. hand, legislation bearing upon subject in this facilitating penalties distinction bets is made between gambling facilitating betting gam- races, bling things. distinction is wise or other Whether the us, legislature may correct does not so much concern appear necessary. cannot may defect that This court legislative prosecution exercise functions. In our forbidding should have been under facili- one the statutes tating namely, bets on to 651 Arts. 647 present upheld. prosecution Art. 625 can
DISSENTING OPINION. LATTIMORE, ap- My signified have Brethren JUDGE. proval appel- opinion reversing an the conviction of opin- gambling house, lant for of which error regret plain. I ion seems to the writer be clear dissent, gambling the denun- ruinous and vice is so —but
634 plain statutory of same so in all our common law and ciations utterances, serious, mistake of this reversal so that impelled length. my I am write at views Legislature, great In 1907 our of a stirred murder county raiding attorney gambling house, Fort at while a Worth C., gam- keeping enacted Art. bling houses, P. aimed at the evil of felony. today a made same Said stands —and keeps as when enacted. a felon him makes who gambling house, keeping interested in the offense this was convicted. Legislature 647-48-49, C.,
In 1909 the P. enacted Arts. discussion, last only pertinent named of which is the one to this evidently change without intent the law with reference to gambling Nothing felonious offense of in houses. C., punishment Arts. 647 and P. have reference to person building. who owns leases is interested in the agent any owner, Art. property forbids this or lessee permit selling pools same be used as a book-making, assisting any person placing any on bet horse races in apparent State or It is to even this elsewhere. a casual observer that none of the three last named articles punishes, punish or was intended to him whose offense is keeping, language, gambling house, in common who runs a —or though indulged gambling even form in or offered was betting races, keeper some form of such was —unless owner, lessee, agent place. Manifestly also the of such keeper or key man who runs man in the such house is guilty owner, lessee, agent whole structure. of such might same, easily identify be hard to or connect especially relating shrewdly when thereto drawn documents furnish smoke-screens. In event court can not assume making a misdemeanor to bet or to own house permitted were to bet on horse races scope intended to circumscribe or lessen the C., P. whose whole effect and directed at keeper any gambling house, no matter how or in what gambling done, manner the which makes such gambling house. The fact at horse book-making, assisting bets, placing etc., made 647-8-9, misdemeanors ball, at foot- Arts. elections, appears baseball and in Arts. misdemeanors, Betting argues nothing pertinent. dice, dominoes, cards, etc., when Art. were all misdemeanors argue are, no one could still supra, was enacted against any way either militated that such fact *7 keep making felony a Legislature it power in a or being which such a in purpose as house for the gambling in this on. The indictment misdemeanor was carried majority. opinion approved Note case is set out language: * * * unlawfully keep and R. there “H. did then and Thomas * * * room a certain was then and there interested * ** used as there situated * ** opinion it bet, wager In races.” on horse does is the indictment appellant’s contention that said: “The is C.,” 625, P. charge contemplated Art. the offense not the contention opinion that with statement concludes be sustained. must sanctity about there be some
Unless none, some- racing, unless there be is can be there —and enactment,— C., thing 647-8-9, P. which a later as Arts. 625, C., Art. P. to the repeal prevent application of would record,— appellant as in this and offense of this shown acts up- good then the indictment is and the conviction should 647-8-9, C., therein find No can P. held. one read Arts. gaming keeper is carried of the house where owner, agent on, prosecuted can be he be the therefor unless lessee, ninety-nine a hundred cases out of which owner, lessee, keeper charged appellant not. This not might charge, agent building. If he such was standing that there a claim have some here which to base 649, charged similarity in Art. was some between the offense C., 626-7, C., P. and those denounced in Arts. P. 625, C., plainly P. time Art.
enacted at same penalized offense were intended in nowise to conflict with the might words, 625, supra. said Art. In while there other ground be some of like character- claim of conflict because C., 626-7, istics Arts. P. between the offenses referred to in holding C., slightest ground Art. P. there is not the C., superseded repealed Art. of conflict P. because Nothing C., Art. 649. offense of P. covers the Art. plainly guilty. which this He is has found been guilty I can- the offense denounced in Art. bring myself to believe that intends construe this court covering interpret plain plain out of existence a statute reasoning. law, by any violation course — say; difficult for me that this court to understand intends gambling plain import opinion, of its as seems the house was to be run for the on foot- shown games, elections, games, ball or baseball the man who gambling kept prosecuted or ran such house could not be 625, simply specifically under Art. because these were Legisla- supra. named in Art. “If states: ture had intended to include the offense races, bookmaking, general statute, in the 625, supra, reply easy could have said An would be so.” it did not name at that was no these because time there against betting statute football base- games. ball
Plainly who runs intended that the man *8 gambling house, is, keeper the thereof, that the no matter what gaming on, the description name or of the there should carried guilty be felony. C., copied held of a Said Art. P. is original our opinion, provisions comprehensive and its are both betting and definite. While on a horse race was not an offense enacted, when Art. comprehended completely was it is language article; any of said and the of room same is true place kept place persons for where resort any gambling. of language “Any place of kind Note the used: * * * * * * gaming shall be considered as if same used betting.” resorted to for the of Nor does say, only games when the named described are upon, bet says gamble, “As a where wager holding bet upon anything in the whatever.” We are majority lessee, man, agent owner, that not persons only C., who are the named in Art. P. ones, guilty not be held of of a violation of the terms —can C., notwithstanding Art. P. to be the the facts him show keeper house, gambling absolute of the reason our —the holding being that at offenses were not in existence time Art. 625 was article. enacted and were not in said named holding We are in guilty effect that can not held even he be after clearly agent he owner, not shown to be the or lessee gambling running. house which had he was He sub- agents employees who made the with the actual contact people placing bets, him the not able to show owner, agent lessee, go presumption is that he will scot upon free reversal of this case.
I can guilty not understand how man would have been this had place ran him gambling in the felony done if the of a dominoes, prosecution had cards, and the upon dice or been any- guilty not to be held supra, but now is under Art. racing. gambling thing on horse because the proposition Appellant lays his brief much stress in racing differ- a different offense Art. kind, quality any named in ent nature and those generis ejusdem can he and that under the rule guilty. held having specifi- Appellant named insists said article cally devices, proper certain construction phrase bet people resort “Or as a wager rule upon anything whatever,” under the should be held “upon ejusdem generis only mean construction known as thing,” like or event and under similar in which proceeded appellant says properly be construction he could cards, against article, is not like because a horse race specifi- dominoes, dice or devices mentioned the other cally part propriety in the first of said article. The urged construction is in view of fact also in the brief mentioned, races the articles which relate etc., pools, prohibited property sell the use of supra, point are later statutes in than of enactment punish- and all three of ing aimed at said last enacted articles are better at a horse and him who aids assists race making bet, permits property such and him to be who his *9 assisting pools, mis- are fixed to each and all of which offenses penalties. demeanor sound, if
The rule of construction referred to above lineage. properly applied, respected and is of ancient was born of or less strictness the common and with more law mention, altogether has been too numerous to invoked cases cases, many discuss; all, it much less to but after as is said only rule intent but a of construction invoked when the document, contract, etc., statute, the words in a used language, clear from the rule never be should such —but clearly legislative to defeat ascertainable intent same be if meaning. ordinary from the used when in their words taken 140; Phelps Grosvenor, 158, W., v. Tenn., State v. 149 258 S. W., 743; Commonwealth, Ky., 318, v. 209 272 State Western S. Kings Ala., So., 99; Brooklyn Co., 570, Tel. v. Union 196 72 343; Co., St., Y. v. Continental Co. Trust 212 N. Stratford Co. 638 Mortg. Pac., 431; Co., App., Mosberger 241 Cal. Cades v. 74 178; State, (Mo.), W., Neb.,
Lbr. 291 Dillard v. 104 Co. S. 668; Bootery W., (Fla.), 175 al. Sutker 107 N. Children’s et v. So., Mfg. Co., R., 698; Nephi A. L. 44 Plaster Co. v. Juab Utah, 114, Pac., S.), (N. L. 33 93 14 R. A. 1043. Another holding that no well the rule referred to has established application appears it from the and does not control where language used, whole, no intent the use there was to, general application kind, species, of etc., terms to limit their specific preceding
set forth enumerated terms such general Eckhardt, Mo., application. words of 232 State v. 321; 718; W., Wiggins State, Ind., 78, E., 133 S. v. 172 87 N. State, 294; Chicago, Ind., Miller v. 121 v. etc. Commonwealth Ry. Co., Ky., 497, W., 596; Williams, 18 v. 124 99 S. Williams App., Tenn., 20; Broderick, v. 19. 7 Mo. There is still appliable, especially another line decisions to the matter us, Eckhardt, quote. before from v. some of which we In State Mo., 49, 232 it is said: ‘ejusdem generis,’
“The only doctrine of however is a rule ascertaining legisla- applied construction to be an aid in intent, tive clearly appears and does not control the statute aas whole that was intended. Nor no such limitation does apply specific the doctrine where the a statute words signify subjects another; greatly nor where the different from specific general objects class, words so that embrace all of their specific meaning
words must bear from the a different meaningless.” words or be Ind., Cooper,
Also as said U. Co. v. S. Cement E., 88 N. 69: arbitrarily applied
“The should to limit rule not be meaning general words, applied when the nor should it be specific class, general objects words embrace all of their so meaning specific words must bear a different from words meaningless, violating or be all the thus the rule that words given effect, statute possible.” must be Again Contracting Drainage find we Com. v. National Co., Fed., 780, S., 628: U. ‘ejusdem generis’ “The partic- rule involves the idea governs ular general, auxiliary is a and sub- mere *10 formula, ordinate application intended assist in of the to basic rule parties governs, in intent neither of law nor ordinary logic any can there be inflexible rule parties which general forego require- are arbitrarily held to ment merely they particular because also state a one.” Strage Com’rs., Ind., Again find Board of we v. following: generis ejusdem itself a rule “The not in and of rule of is interpretation, interpretation when the inten- to but an aid * * * ejusdem apparent. The rule of tion is not otherwise prior generis specific exhaust apply words does not when remaining nothing qualify, to class, terms the and, for there shall, pos- parts if following statute the rule that all effect, given general sible, given effect, to words are be be to not invoked done, the rule shall be and that can be if that than the narrower limits operation of the act within restrict Legislature intended.” Co., 124 Ry. Supreme Kentucky, v. Com.
The Court Ky., said: things ejusdem general to words
“So restriction deprive generis to not carried to such an excess as must be things particular meaning. them of all The enumeration of nothing complete which sometimes so leave exhaustive to generis. ejusdem particular If the words exhaust can be called larger genus, general refer some a whole words must to rejected, genus. general words are not every ejusdem generis yield maxim of must to the maxim that part upheld given appropriate of a statute should be its possible.” effect just
In order that we have our what clear, quoted may quoted part be made we refer to the “ * * * supra: wager, as a to bet or cards, dominoes, keep with purpose dice or to exhibit for gaming, machine, any bank, table, alley, wheel things particular device whatsoever.” In this enumeration of forbidden, what is left of the are not like kind? Cards same dice, both, widely and dominoes differ three practically gambling games exhaust the list do tables, specially enumerating call for made tables. After banks, alleys, etc., this its omnium- list concludes with own gatherum by game, saying “Or whatsoever.” What like device out table or device is left could one claim belonging of this All class enumeration. of like kind caught “Any up are either named or else net of device pro- plain whatsoever.” the law-makers then when above, ceed add to the —“Or wager upon whatever,” they bet or intending genus species thereby to refer to *11 640 included, such had been enumerated or but in-
or devices tended, could, they as far as to reach out and include kind exhibiting, short, gam- wagering stop of —to bling wager places people upon any- where to bet or resorted thing proof whole of this whatever. The article reeks with “Regardless comprehensive goes say intention. Same on to of banks, games, tables, whether above mentioned the devices, alleys, machines, things, licensed wheels or are stop here, says: law or not.” Nor the further does statute but “Any place gaming shall device be considered as used gamble with, wagering, any money or to thereon, of value is bet or if the same is resorted to betting.” completely How the Ry. Co., Ky., words the 124 above Com. v. quoted, applied met and the words used in this statute. particulars enumeration of nothing therein is so as to leave exhaustive partic- ejusdem generis, which could be called and the having genus species, ular words used the exhausted the general following larger words must refer us to a class species. attempt meaning phrase explain To “Or wager upon bet or anything whatever,” generis, theory ejusdem ignore only stronger better rule which is written Code, every into Arts. and 8 our Penal demand according plain import article of this code be construed language written, in which it is and that the words of code, specially defined, unless shall be taken construed language, they sense in which are used in common taking matter, subject into consideration the context and forget grounded is also to and leave out well which is rule demanding generis, more ejusdem than that of —which every part language given upheld a statute must be and its appropriate effect, possible. if at all in U. Cement As said S. Cooper, Ind., generis v. ejusdem Co. rule of is but one of a number of rules of to aid in find- construction intended ing meaning etc., where, statute, considering the true of a whole, public act as a remedied, the evil to be senti- passage, ment at the clearly time of its of the act appears, arbitrarily applied rule should limit not be —the meaning general words, applied nor when should it be specific class, objects words used so all of their embrace general meaning words must bear a different specific words, meaningless, or else be would be given rule that all words of a statute must be violation of the *12 exact conclusion reached possible. This is almost the effect if Missouri, appears quotation by Supreme in the Court of Eckhardt, Mo., 49, supra. 232 from State v. conclusions,
Giving and also to to these well settled effect language 625, supra, purpose I am and of Art. what seems the the offense not able to hold that said article does embrace case, contrary that by in this but on the made the facts believe it, intent of our law- it does so and that such was the embrace makers. scrutiny Arts.
Nor do I find closest Legis- 647-8-9, C., evincing» part our on the 625, supra,— operation lature to take out of the being keeping and interested in offense of to be used as a to which wagering, thing upon and and to be bet —when wagered about is a horse race. place to permits property man who his to be used
The house, keeper his likely of the as bad as the pen- years in the punishment is fixed at same number principle itentiary law, are in under our but the offenses elements different. appellant and
I have read with interest the able brief therein, many authority others. each cited and discussed opinion agree every heartily of the able I most with word Judge State, App., 620. Murray 21 v. Texas Crim. White Roquemore, disagree parte Ex do I what is said in Nor with game 282, Rep., held the 60 this court Texas Crim. generis for ejusdem amusements with those of baseball Laws, I have by commonly Sunday call the bidden what we my inability application is there said to admit to make of what . to what is found in the case before us
Having made carefully contentions considered the various him, agree by appellant case, in this and not able to my dissent. majority opinion, respectfully nor with record I FOR REHEARING ON MOTION Judge. vigorous HAWKINS, motion has filed a original rehearing contending in our we erred holding against any it law had offended In by was not Penal Code. defined Article 625 of the 697, Walker, Texas, 361, (2d) Dolan v. 49 S. W. prin-
Supreme long accepted Court of this State has restated construing paramount rule in ciple, “The statutes as follows: Legis- give effect to the intention of the is to ascertain and applicable peculiarly it rule lature.” This seems complained questionable of come whether certain acts within the denunciation of a criminal statute. Legislature as
In an intention of the effort to arrive at the necessary expressed in to consider said article 626, 627, 647, connection therewith articles legislation Code, history 651 of the Penal and also the reflected said enactments. passed 1907, p. 108) the (Acts
As the 30th appear present article which form. is now 625 did not its 388b, was in the enacted as article carried forward read as revision of the Penal Code as *13 follows, original any “If both in the act and in revision. said person keep any shall rent manner to another or shall or be building, keeping, premises, any interested in room or wager, purpose or for the or of used as a to bet gamble cards, dice, keep to for with or or exhibit dominoes to machine, gaming, bank, table, any alley, the of wheel whatsoever, or to device or as a wager upon anything bet or or shall know- whatever ingly permit owner, property premises or or which he is of used, guilty which is under of a his control to be be so shall felony punished by and conviction shall be confinement years, penitentiary the not less than nor more than four two regardless tables, games, any of whether mentioned the above banks, alleys, machines, things devices, are licensed wheels or or by not, any place law or and considered as or device shall be gaming betting wagering, used for or to with or for any fees, thereon, money, or if of value is bet to, betting.” same is resorted “renting” It premises will be noted that for purposes article, “permitting mentioned in the use” of premises article, purposes for such included in the same was up” “split revision of old article was “renting premises” appears now as article 626 and “permitting premises appears 627. the use” of article now as (Act Legislature, 68) In 1903 p. 28th it was made c. engage selling buying in, a misdemeanor or assist pools bookmaking betting races; it was likewise permit made a his misdemeanor for an owner or a lessee premises bookmaking selling place” pools, “to be used as a Legis- (Act betting In 1905 of the 29th races. Legislature lature, 398), Act the 28th was p. c. selling, amended, expressly provided book- and it was permitting premises making on horse races and they purposes, were not offenses if occured used for such day “on where such race” and within enclosure articles run. of the law when what now Such was the status Yet, Legislature, 625, 626, enacted and 627 were in 1907. knowledge expressly permitted the the act of 1905 things bring now mentioned and which the State seeks present any without reference enacted said law Legislature had the act of 1905. seems to follow that 625, 626, no intention at the articles time to include under selling pools, bookmaking, 627 the If, permitting purpose. premises to be used for such State, included
contended such acts intended to be strange articles, in the denunciation and un- of said it seems Legislature ignored entirely reasonable that would have before, years effect, say, their act of now two that we doing things propose penitentiary to send one to the ago expressly years we said two were not offenses character, permissive without mention act. of said former (Acts Legislature, Legislature p. 90) In 1909 again 31st c. racing, betting thereon, pools dealt with horse bookmaking permitting premises to be used for such purpose. regard Twenty-Ninth The Act of the *14 expressly repealed to such matters was and there was enacted in lieu thereof what is now found in the Penal the revision of 647, 648, 649, 650, Code of 1925 as articles and 651. Once again Legislature ignored entirely 625, 626, articles having 627, any racing subject as relation to the of horse or the things heretofore mentioned in connection therewith. 651, inclusive,
offenses defined in made articles 647 to punishment fine, prescribed by misdemeanors and the or by imprisonment construction, jail. fine and By State the. bring alleged seeks to have acts which language committed under article 625 “or as a wager upon anything bet or determining Legislature whatever.” In ever in- whether any construction, tended pertinent such it to take note of following originally By language fact: of the law as 627, enacted in as now embraced in articles any knowingly permits premises one who property of which control, any owner, under his to be used
he is or which is felony carrying guilty mentioned in article 625 of a years in punishment than four of not less than two nor more penitentiary. as If article 625 and 627 be construed controlling property contends, any then one the owner State premises permits used as a bet who to be thereon, race, pools make on a horse or to books sell construction, guilty felony; we yet, would be of a such Legislature doing thing enact- find the ing the futile and foolish C.), provides (article as a law in 1909 agent owner, any property in this follows: “No or lessee of permit State shall same to be used assisting pools bookmaking wagering receiving any person receiving transmitting placing any bet or in run, offer to race to be bet of value on paced any place trotted or A at in this or elsewhere.” penalty and im- for the violation thereof is fixed at a fine prisonment contention, jail. Thus, by the same the State’s felony act in one in another as a rendering instance is denounced as misdemeanor, thereby penalties, both with different legislative nugatory acts mention and unenforceable. We concluding Legislature as never another reason for charged against appellant intended that the acts which are should be covered article 625. tending Legislature
As further that the had to demonstrate charged no intention to include under article 625 the acts against Legislature, appellant, (Acts we in 1933 43d note that 1933, p. 428, S., Leg., 1933, p. c. as amended First 43d C. racing passed permitting c. a law was sys- thereon under called the “certificate what was tem,” permitting holding provided for one a license money said act to collect and receive contributions purposes any person present enumerated at such race for having the articles in mind said act. The racing, and fearful of to horse of the Penal Code relative thereof, provided follows: “The attempted enforcement an not be shall system herein authorized certificate bookmaking selling, betting or either to be construed meaning the Penal 647 and 648 of Articles within *15 according Texas, 2, Chapter the Title the Code of State 655a, C., 2. subsec. Ann. P. art. 1925 revision.” Vernon’s ignored reference Again, Legislature entirely made no and the had no that to indicate to article 625. This would seem bring might under said apprehension that effort be made an appre- things by which act of article the the authorized hension did exist the articles mentioned. as to Attorney filed of this has a brief General it, present misapprehend he does case. If do not we original opinion, from in conclusion reached in our us differ “ejusdem applying questions rule of whether but generis” placed construing thereon article the restriction greater necessary rule was proper. The is not was than legislative employed intent with attempting to ascertain against charged appellant. regard particular to the offense legislation Construing the other in connection with to, application proper was has been referred we think made of the rule. If the offense of bookmaking betting race, pool sell- and on a horse
ing things mentioned thereon were of the same character as agree Attorney in article General then we would generis” invoked; “ejusdem that the rule of not be need great there is such difference the character gambling and devices mentioned article 625 and horse bookmaking, that in order to sustain the State’s would, judicial by contention con- opinion, this court in our be reading struction into the statutes that which proper did not see include therein.
Having original disposition reached the conclusion that correct, rehearing made of this case in all motion for things overruled. ON MOTION FOR REHEARING.
DISSENTING OPINION Judge. LATTIMORE, overruling their In rehearing my try to motion for Brethren seem to State’s original support their me to be conclusions deemed legis- unwarranted, wholly recital of the erroneous and involving gaming, history present our laws on lative especially that feature of same connected with on races, book-making, etc., they attention to the fact call sweep- Legislature, passed years they the 1905 before —two ing comprehensive act, part of which is pro- had, prosecution and under which this a law is —enacted viding book-making, pool-selling only “except penal races should forbidden made run; also day race is and within the enclosure where such containing enacted, act in 1907 when Art. *16 1905, act of reference to the above made no
same mentioned in- my infer that the act of 1907 was Brethren which fact include, or, applied, a felon of him here tended to —as —make being place kept purpose as a to for the used who a house charged. wager race, here a horse as is bet and directly protects, 1905 act which I do find a word being keeping indirectly, man whose offense building purpose keeping a certain house or interested gamble bet, wager being place a horse used as a might unenforceable race. I observe that the 1905 law was caption of the and obnoxious to our Constitution because purported wholly amendments act failed to set out what act, legal prior only to the were to be. The amendments racing* caption, referred to in said related to carry any attempt Sunday. was ever made to on same on If it, execution, I not aware of and same said 1905 act into am expressly repealed substan- in 1909 when the old law was aim, tially might purpose I further that the reenacted. observe here, penal- applicable and intent of was to the act as keeper gambling house, wholly ize the of a without —and regard prem- to whether he owned or had leased the house or Argument plain unnecessary ises involved. to make would seem racing thirty, years that as horse was conducted in this State ago, fairs, language county etc., permissive at State and “Except day 1905 act as follows: on the and within run,” clearly im- enclosure where such race make would possible, impracticable house or at least of such a premises place purpose being place as a for as a used bet, wager gamble might im- on horse races. not be possible kept place for a house to be as a to be used for such purpose when one its existence and continuance was limited to day enclosure, cry and one it a far to the writer seems enacting why cite this act as a reason Chapter 49, Regular Session, Acts not include should be held to place kept being place a house for used as English to bet plain, simple when words expressly keeps used include him who such house or what- to bet “On ever.” language
The exact caption act of 1907 is “Making follows: felony punishable a' confinement the penitentiary through agent, any person directly, an agent keep for another house or cards, dice, whatever;” upon anything dominoes or C.) language (now of said act makes Art. 625 of Art 388b keeps keeping any interested in build- felon of him who *17 being place to ing, place used as a for the room or cards, etc., place wager, or as a bet or or to whatever, wager anything bet or to * * * * * * things regardless of whether such * * * not, by any place be considered licensed shall law —and * * * wagering, as used for money or for thereon. of value is bet My opinion say: in their Brethren Arts. are now of the law when what
“Such was the status Legislature, Yet, enacted in 1907. 627 and 628 were expressly permitted the knowledge the' act of 1905 with things bring to and which the now seeks mentioned any reference to present Art. enacted said law without no had act of 1905. It seems to follow 626 and intention at the time to under Arts. include races, book-making, betting pools, permitting premises purpose.” for such permit
They expressly are in error. The 1905 Act did anywhere kept or used house or to be wager to bet or used as attempted its and if the Act had been constitutional embrace, it be construed enforcement would not nor could to, kept this have reference such a as was record, argument THE IN shown OFFERED wholly OPINION, Act, on the 1905 seems to writer based things in the ground. fall There are contained other nothing legal its suffieience. opinion that seem to to add me my former I in addition to those make these observations dissenting recognize opinion is no dissenting opinion. I that a expression writer. more than an of the views its again my respectfully I record dissent. v. The State.
Joe Watson February 19, 1936. No. 17957. Delivered