This is a conviction for keeping and exhibiting a gaming bank for the purpose of gaming, and the punishment assessed and adjudged against the defendant is a fine of twenty-five dollars, and ten days imprisonment in the county jail. This punishment is within the provision of the Act of March 19, 1885 (Gen. Laws, 19 Leg., 34), amendatory of Article 358 of the Penal Code. This court, however, in Hunt et al. v. The State, 22 Texas Court of Appeals, 396, declared that Act to be unconstitutional, and that the only punishment which could be legally imposed for this offiense was that imposed by said Article 358.
By this Article imprisonment in jail not more than thirty days may, in the discretion of the jury, be imposed in addition to the fine; but by the amendatory Act, above cited, imprisonment not less than ten nor more than ninety days was required, and in this case the court so instructed the jury. Ho discretion was left the jury to omit imprisonment as a part of the punishment. Because of this error the judgment must be reversed and the cause remanded, that the defendant may be tried under Article 358, the law in force when the offense was committed.
It is expressly provided by statute that in prosecutions for gaming a conviction may be had upon the unsupported evidence of an accomplice or participant. (Penal Code, art. 367; Stone v. The State, 3 Texas Ct. App., 675). We have no hesitancy in saying that in our opinion this provision of the code is constitutional, and that the court, with reference theróto, did not err in its charge to the jury.
The judgment is reversed and the cause is remanded.
Reversed and remanded.