Wheelock v. State

| Tex. | Jul 1, 1855

Wheeler, J.

The present differs materially from the cases heretofore decided, in this: that it was proved that there was playing at the house but on one occasion, and that no one was present or Avitnessed the playing but those concerned, that the house Avas in a retired, secluded spot, at a considerable distance from any public street or highway, and that it had not been resorted to by persons on any other occasion; in a word, the evidence excluded the supposition, or inference, that the house was resorted to by persons on any other occasion, or that there were any persons present on that occasion but those concerned in the playing. There was no room to infer from the fact that the place was resorted to by those persons on that occasion, (as in the case of Wheelock v. The State, No. 551,^*) that it was so on any other occasion. The evidence positively negatived any such inference. The negative proof did not rest simply on the absence of knowledge of any other occasion by the witnesses ; that, perhaps, would not have been sufficient, whatever opinion a witness might express of his general knowledge upon such a-subject. But it was proved by the proprietor of the house, that he had kept it locked up ; consequently it could not have been resorted to on other occasions without his knowledge. The evidence, therefore, amounted to proof of the negative, that it was not so resorted to. The case cannot be distinguished in principle from the case of Smith v. The State, (23 Ala. R) where it was held, under a similar Statute, that the playing was not indictable.

The Legislature would, perhaps, more effectually have suppressed the evil they aimed to suppress, if they had prohibited all gaming, in whatever place ; and certainly they would have rendered the escape of offenders, from a mere defect of proof, so difficult to obtain in this class of cases, less easy. But they appear to have intended the prevention of the evil example, rather than the suppression of the evil itself.

It is, with much fairness and justice, conceded by counsel for the appellant, that a house may be such a place of resort on one occasion, as to bring it fairly within the statutory description of a house “ where people resortand that it is difficult to fix any certain rule as to the number of persons or occasions which shall be sufficient. And we think the counsel correct, also, in maintaining that there must have been either more than one occasion, or more persons present on one occasion than those who went for the purpose of playing, to bring it within the mischief—the evil example—which the Statute was designed to suppress. To this latter proposition, however, there may be an apparent exception, where persons who happen to be present are induced to become interested in the playing, with a view to the evasion of the law. That, of course, would not shield the offenders; but, if the offence were otherwise made out, would be an aggravation. But, as it is impossible to say with precision, how many more occasions than one, or persons, than those who go for the purpose of playing on one occasion, shall be sufficient, if it might be fairly inferred from the evidence that the house had been resorted to for such a purpose on any other occasion, or that on the particular occasion there had been one person present besides the . parties concerned, it might well be held that the evidence was sufficient to warrant the verdict, and the conviction right. If a house is frequently resorted to for gaming, it is reasonable to suppose that it will be known to persons other than those concerned, and there is the mischief of the evil example. Or, if one person is present on any occasion, other than the parties concerned, it is, as to such person, equally within the mischief, as if there had been any number present. But where .there was but one occasion, and no one was present but the parties themselves, we cannot hold it sufficient, of itself, to bring the house within the statutory description of a house “ where people resort.” We are of opinion, therefore-, that the judgment be reversed and the case remanded.

Reversed and remanded.

* Next but one, Supra. Reps.