Case Information

*1 OFFICE OF THE ATTORNEY OENERAL OF TEXAS

AUSTIN

*- c. MANN

Saorzble CU.& A. Zaarbaa

County Attorm;

Wrath Comty

St3~hzmlllo. Texas

EGar sir: f

rest all the persom a pne of cll3nce, in- 0 o-vnzr as *Jell as his of goxr request for our oplni

vhich 52ace oTflc,Grs are ._ ai+e ,fcllerallg rarrants of Crkinal Procedure, Spoclal provisions of for certain violations; rests motor vehicles, wd other vlolatlom of otar vehicles (Art. 603, P.C.); unlavflil ka7, IbAd); etc.,'but ye Tend XI0 such &hMlzlng the arrest vithout varraat of ations O? thG 3fAtUt03 a&r&i +D.iILg. 11, Pollal Oode, Articles 615 to 642.

Article 212, Code 320 Czi=cinal P~ocedwe, 1925, zoads as fcllavsr

Honorable Cl%t A. %&am, Page 2

"A peace officer or any other person, my, without varrant, arrest an offender whsn the offense is comltted in his presence or vlthln his vlev, if the offense 1s one classed as a felony, or as Ian offense againet the pub- 110 peace."

This Jtatute, which is controlling in most lustmce3, 13 very plain - in order to justify an arrest under it the offense must amount either to a felony or an offense against the public peace. Tex. Jur. 743, 0 5 and case3 cited ~IZI notes. The circumtances must be such a3 to varrant rea- sonable and cautious man &I the.belief that a felony is being connltted. Xoore v. State, 107 TPX. Cr. R. 24, 294 9. W. 550.

Article of the Penal Code makes it a mf3denetior to bet or vager any money or ctk er thing of value at any game played with dice. For violations of this particular Article warrants are essential to perfect a legal arrest.

Articles 625, 626 and of the Paaal coda 0f 1325 are taken from Artiole 559 the lgll. revision, and condenn as a felony the keeping of a placa for the purpose of beF?g used as a place to bet, vager amble vlth various named things, among them dice. Article 62 8 i&cm it a mls- demeanor for one to permit such games to be played 3n his hou3e, or in a house uuder his control, the said house baiag qither a publi.o.place or ap,purtenant thereto.

The Court of Crininal Appeals has seemlngly encounter- ed considerable dlffloulty in construing these several provl- slons, but apparently has mde a distinction "betveen petitting casual game on one's pretises snd that of permitting premises to be kept for the purpose of gaming." Frldge v. State, 90 Tex. Cr. R. 75, 233 9. W. 979. See alao the ca3e of Francis v. State, go Tex, R. S. Y. 974. In the latter case we lnterppet the opinicm to hold that It vas not the in- tent of the Legislature to denounce as a felony the acts of one vho mrely suffered the playing of prohibited game in M.&h;Ee, but the proof must show that ttfe pretises were kept

puyO3e of being used as a place to gamble. We like- v‘ise direct your attention to the cases Of Born Vs. State, i

Ronarable Clint Barham, Page 3

117 Tex, cr. R. 9. W. (2d) 439 and Grundy v. State, 129 Tax. Cr. R. 93, 83 3. W. (26) 991. The presence of para hernalia and equipment ror . _ --_

gaubllng (as additlanal proof P vould seem to be eurrlclent to sustain a felony comlction sunder the faots submitted

Reese v. State (Tex. Cr. A.) S. V. In the Reese ca3e an attack vas made on the suf- ficiency of the search varrant wed by the offloers. The Court held that lnasmch as said officers sav gambling going on and gambling paraphernalia in the house before entering the house, they had the right, without a warrant, to arrest the person vho controlled and occupied it. 3ee also ‘Kavang v. State (Tex. Cr. A.) 147 S. W. (2d) 262.

It la our opinion from a careful reading of the above and mauy other cases that ¶.f an officer happened to see an owner of a private residence and several guests en- gaged in a dice game in the resldence,neven though vagerlng on the outoome of the “pne, of chawe, absent other evidence the residence being kept for the purpose of being wed a3 place to gamble” there vould be no justlflcation for arre3t of any of the participants until a varrant of arrest had been obtained. If, hovever, from the existence of gmbling paraphernalia, other facts, suoh residence vas belzig operated as place for the purpose of being used aa place to bet and vager, and to gamble vith dice, the arrest of the. ovner votid .be legal utider the provisions of Article 212, Code of Crlmlnsl Procedme, for felony being commltted in the presence of the officer. Reese v. State, stlpra.

If the extent of the conduct of the “guests” of the ovner was to do no more than to participate in the game as players, such “guests” vould not be guilty of felonious canduct and a warrant vould be essential to legal arr83t.

To sustain 8 convlotlon for keeping of premises for use as a gambling hou38, it must be shovn that the accused had some interest In the place in vhlch prohibited games Yore playedj ~evl3.v. state, Tex. R. 105, 124 9. W. (26) 121.

Bonorable Clint Bsrhsm, Page 4

Ye do not believe one uerely playing at proh#lted game could be properly convicted as a priaclpsl vlth one charged with keeping a place to be used as a place for gambllrig. Therefore, such persons could only be legally arrested vlth a varrant. very truly

Your3