No. 5254 | Tex. App. | May 21, 1887
Appellant was convicted of the offense of unlawfully keeping and exhibiting, for the purpose of gaming, a certain gaming table. There was but one witness for the State, one Burriss. It appears that appellant’s counsel requested this
It also appears that there had been a former trial of this case, and that this Burriss was the prosecuting witness, he then locating the offense “in a room over Paschal’s saloon,” in the town of Denton. In testifying upon the second trial, he placed the room “in Withers’s saloon, on the west side of the public square.” Counsel for appellant, claiming surprise, moved the court to permit a withdrawal of announcement, and that the cause be postponed or continued for want of the testimony of O. P. Poe, Newt. Paschal, J. B. Duncan and B. A. Kelso, residents of the county, by whom he could prove that, at the time and place testified to by Burriss, defendant did not exhibit a gaming table, but played a game of draw poker, for which he had been fined, etc. That, if postponed, he desired to enter, and to prove by these witnesses, his plea of former conviction. This motion was overruled.
The indictment charging the keeping and exhibiting of a gaming table, the former conviction for playing at poker could not be interposed. In fact, there was no necessity for such a plea, for the plain reason that, if not guilty of keeping and exhibiting a gaming table, he could not be convicted at all. But if, in fact, the transaction testified to by Burriss was the same as that mentioned in the motion, the testimony which he stated would be given by these witnesses would have been a complete defense. This being so, the motion to withdraw should have been sustained, and the cause continued or postponed, according to the circumstances.
The record presents no other reversible error, but for that indicated the rehearing is granted, the judgment reversed and the cause remanded.
Reversed and remanded.