Wolz v. State

33 Tex. 331 | Tex. | 1870

Morrill, C. J.

“If any person shall keep or exhibit, for the purpose of gaming, any gaming table or hank, of any name or description whatever, or any table or bank used for gaming, which has no name, or shall he in any manner interested in keeping or exhibiting such table or hank at any place, he shall be fined,’’ etc (Art. 412, Criminal Code.)

“ The word ‘ exhibited,’ is intended to signify the act of displaying the hank or game for the purpose of obtaining betters.’, (Art. 417, Criminal Code.)

The word “ gaming,” has two significations, one of which refer to what is illegal, and the other to what is legal and proper1 Where the statutes provide that “ there shall he assessed of eaeb and every person, or firm, keeping a billiard table, an annual direc tax of fifty dollars for each table so kept,” (Art. 5155,) it author .izes any person to keep, for the purpose of gaming, a table, called a billiard table. Gaming is here used in a different sense from gambling. It is evident that the gaming contemplated as illegal by the statute, is synonomous with betting. As the “word 1 exhibiting’ is intended to signify the act of displaying the bank or game for the purpose of obtaining betters,” so the word “ keeping ” is intended to hold in readiness a table for the purpose of obtaining betters. Whenever it is evident that the keeping a table is not for this purpose, since a person can keep a billiard table, or table for dominoes, backgammon or chess, for amusement solely, there is no violation of the statute.

The statute intended a prima, facie case to be made out against every person liable to be charged or specified therein, but it could not be intended thereby that the presumption should be a conclusion, and that gaming signified gambling universally.

“It is the duty of the judge to state plainly the law of the case.” (Art. 595, Criminal Procedure.)

The charges requested to be given to the jury and refused, would have fully justified the jury in finding the verdict first brought into the court by them, “ that the defendant was not guilty of keeping a gaming table;” and this was all the charge in the indictment. That the charges requested and refused should have been given in “ stating, plainly the law of the case,” is simply to say that the court should have charged the jury, that a table may be used and kept for the purpose of games of recreation or amusement solely; and when so kept, the person keeping it is not chargeable criminally.

We consider the judge erred in setting aside the verdict first found, and not discharging the defendant. Proceeding to do what the district court should have done, the judgment is reversed and the defendant discharged.

The positions taken in this case are in compliance with the points decided-in Stearns v. the State, 21 Texas, 695; Booth v. the State, 26 Texas, 203; and State v. Barton, 25 Texas, 420.

Beversed.