BELL v. THE STATE

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Docket Number

No. 63.

Attorney(S)

Browning Madden, for appellant. — 1. To keep or exhibit, for the purpose of gaming, a gaming table or bank, is an essentially distinct and separate offense from wagering at a game of dice; and a conviction for such keeping and exhibiting can not be had and sustained under and by facts showing only a wagering at such game. Penal Code, arts. 358, 364; Whitney v. The State, 10 Texas Cr. App., 379; Cronin v. The State, 30 Texas Cr. App., 278; Hale v. The State, 8 Tex. 171; White v. The State, 13 Tex. 133. 2. The playing at the game of dice known as "craps," on a table, and in which it is not shown that such game has in it, as an essential element of the game, the principle of a keeper, dealer, or exhibitor as one in interest against the many — that is, against any and all the bettors who may come and bet against the game, either singly or in groups — is neither a keeping nor an exhibiting of either a gaming table or a bank, as denounced by articles 358-360 of our Penal Code. Chappell v. The State, 27 Texas Cr. App., 310; Webb v. The State, 17 Texas Cr. App., 205; Stearnes v. The State, 21 Tex. 692; Commonwealth v. Kammerer, 13 S.W. Rep., 108. 3. The playing and betting at a game with dice, called "craps," on a table having on it a cloth, on which are certain numbers, and strips around the edges, it not being shown that such table, strips, numbers, etc., were in any way or manner either necessary or an essential part of the gaming device or the proper playing of such game, but that they are neither necessary nor essential, constitutes neither a keeping nor an exhibiting of either a gaming table or a bank, as denounced by articles 358-360 of our Penal Code. Whitney v. The State, 10 Texas Cr. App., 377; Chappell v. The State, 27 Texas Cr. App., 310; Commonwealth v. Kammerer, 13 S.W. Rep., 108. STATE'S MOTION FOR REHEARING. R.L. Henry, Assistant Attorney-General, for the State. — And now comes the State of Texas, in the above numbered and entitled cause, by her Assistant Attorney-General, and moves the court to set aside the judgment of reversal rendered on the 18th day of February, 1893, for the following reasons: 1. Because the court erred in holding, that the record showed a game similar to the game passed upon in the case of Chappell v. The State, 27 Texas Criminal Appeals, 310. The facts in the Chappell case are entirely different from the facts shown in this case. 2. The record in this cause shows beyond controversy that the game played had all the essential elements of a gaming table and game, to-wit: first, it is a game according to the general definition; second, it has a keeper, dealer, and exhibitor; third, it is based on the principle of the one against the many, that is, the exhibitor against the many; fourth, it was displayed for the purpose of obtaining bettors; and fifth, bettors were secured, and upon this the conviction was obtained. It is beyond dispute that appellant kept and exhibited the table for the purpose of gaming, and he invited bettors and secured bets. The record clearly discloses, that the dealer stood in the attitude of the one against the many. It is submitted that the case of Stearnes v. The State, 21 Tex. 698 [ 21 Tex. 698], is directly in point. 3. The record clearly discloses, that the game in controversy comes directly within the statute against "keeping and exhibiting a gaming table for the purpose of gaming." The record shows, that every word, letter, and article of the statute has been violated, and that one man kept and exhibited the table and invited and secured bets, and that this one man was the dealer and exhibitor all the time. It is earnestly contended, that the case in hand is entirely different from the Chappell case, and an inspection of that case and this record will clearly disclose the difference. Penal Code, arts. 358-363; Willson's Crim. Stats., secs. 586, 587; Estes v. The State, 10 Tex. 306. Wherefore, the State asks that the judgment of reversal be set aside, that a rehearing herein be granted, and that the judgment of the lower court be affirmed.

Judges

SIMKINS, JUDGE.

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JOHN BELL v. THE STATE.

1. Gaming Table — "Craps." — Where, on a trial for exhibiting a gaming table, the evidence showed that the game played was "craps," that it was played upon a table of a certain form and with printed numbers on it to be used in the game, which table was exhibited to attract bettors; that it had an exhibitor who presided at and kept his money upon it; that all the parties to the game threw the dice, except the exhibitor; that all bet against him; that he paid the winnings of the bettors, and took all the losses: Held, that such table was a gaming table, within the purview of articles 358 and 359 of the Penal Code.

2. Same — Test as to what is a Gaming Table. — The test as to whether a game played on a table was exhibiting a gaming table or bank is, "was it a game of the one against the many?" Following Stearns v. The State, 21. Texas, 698.

3. Same — Case Distinguished. — See distinction drawn between the facts in this case and the facts in Chappel v. The State, 27 Texas Criminal Appeals, 310.

ON MOTION BY THE STATE FOR REHEARING.

SIMKINS, JUDGE.

Appellant was convicted of unlawfully keeping and exhibiting a gaming table and bank, and his punishment assessed at a fine of $25 and ten days imprisonment in jail, from which he appeals.

Testing the facts of this case by the leading elements of a gaming table and bank, as laid down in Stearnes' case, 21 Tex. 698, we think the game of craps, as exhibited by appellant, was a gaming table, as defined by articles 358, 359, et seq., Penal Code. It was a betting game. The table was specially prepared for the game, being of a certain form, and having the numbers printed thereon, from 4 to 10 consecutively. The table and game were exhibited to attract bettors. It had an exhibitor, who presided at and kept his money on the table. Every one who bet threw the dice, except the exhibitor. All bet against him, and he took every bet offered. In the crap vernacular, "he faded the bets." He paid all the winnings of the bettors, and took all their losses. It was the one against the many, the supreme test of a gaming table or bank. The fact that a game may be played without a table does not prevent a table specially designed for the game, and exhibited, from becoming a gaming table, though there are gaming table games which can not be played without a table. Nor is there anything in the suggestion, that in this game the dealer can take but one bet at a time, and the bettor throws the dice. It makes no difference whether he takes the bettors consecutively or in a body, if he is there for the purpose of taking every bet offered at his table.

In the Stearnes case it was a raffle, in which each separately and in turn threw dice for a prize. The court says the jewelry was the lure. The real fund against which the bettor staked his money was the fund in the dealer's pocket or on the table, and the defendant was convicted of exhibiting a gaming table. Nor is there anything in the suggestion that bettors might bet against each other. The true object was to induce parties to bet against the dealer, and such was the understanding and practice of the bettors.

In Chappell's case, 27 Texas Criminal Appeals, 312, it was held, that a game of craps, as exhibited in that case, was not a gaming table, but the decision was limited to the facts of that case, and the facts as there proven may have justified the decision; but in the case at bar there is not a single element wanting to show that this is a gaming table, and the judgment of the County Court of Donley County is affirmed.

Affirmed.

HURT, P. J., concurs. DAVIDSON, J., absent.

JOHN BELL v. THE STATE.

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