Bird v. State , 66 Tex. Crim. 611 ( 1912 )

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing. In it he says: "Appellant does not contend that the evidence did not show that a banking game was played, and does not contend now that the evidence does not show that a banking game was played, but has contended at all times, and still contends that he was not indicted for running a banking game, and that he has not had an hour or day in court upon a charge for conducting a banking game." This simplifies matters, for if by a proper construction it was a "gaming table," within the meaning of our laws, he was exhibiting, the guilt of appellant is admitted, he only contended that instead of exhibiting a gaming table, that he was engaged in running a "bank." Appellant further says: "The court, in the majority opinion affirming this cause, undertakes to do so upon the authority of the Stearnes case, reported in the 21 Tex. 693 [21 Tex. 693]. We do not understand that such is the usual practice in going back in ancient history in order to find a case that would permit this court to affirm a judgment." Judge Roberts, the writer of the opinion in the Stearnes case, is recognized as one of the ablest lawyers who ever graced the bench of this State, and we do not understand that a construction placed by him on our statutory law is "ancient history," but the rules of law then prevailing are the rules of law of today, and will be for tomorrow, and this case has been frequently referred to by this court as a leading case on gaming tables and banks. We can not agree to change the rule of construction every time a friend desires a case reversed or affirmed, but the law should be the same as applied to all men.

As to whether one who stands behind a billiard table and runs a game of craps, to be participated in by all who desire, is running a gaming table, in the Stearnes case (21 Tex. 693) Judge Roberts says the indictment charged that defendant "did keep and exhibit a gaming table for the purpose of gaming," and that the evidence was clear, positive and without conflict, and described a gaming table as plainly as any description can be given of roulette. The evidence in that case did not show any specially prepared table, but that on a table one threw dice for prizes ranging in value. This appellant terms as "ancient history," for if the rule there announced is the law, then there can be no question under the evidence in this case that appellant was guilty of exhibiting a gaming table as charged. It is true, that in the case of Whitney v. State, 10 Texas Crim. App., 377, a somewhat different construction was given to the statute. In that case it was held: "Obviously the intention was to prohibit gaming upon tables or banks made or constructed with a view to certain specific games in which the table or bank is not only a part of the gaming device, but is also necessary to the proper playing of the game." This decision was in direct conflict with the prior holding of the court in Estes v. State, 10 Tex. 300, wherein it was said by Judge Wheeler: "We do not understand that it is, literally, the table or structure, whatever that may be, on which the game is played which gives it the character and designation of a gaming table, but it is rather from the character of the playing or the game which is played that it receives its specific designation. If it be a billiard table which is used, as from the evidence it appears it generally is, the name and description of the game played is material only that it may appear that it is not the game which is protected by the license, or that it is of the description or species of gaming prohibited by the statute. When thus employed and for such purposes the billiard table is perverted from its legitimate design and use."

The opinion in the Whitney case was also in direct conflict with the Stearnes case wherein it was held:

"Article 412 prohibited the keeping or exhibiting a gaming table or bank, of every sort, of every name, and of no name. The regular game of this class, known throughout the world, whether yet introduced here or not, are certainly comprehended in this enactment. But the Legislature designed something more by it. They anticipated that disguises, shifts and subterfuges would be resorted to, by which the regular games of this class would be changed, or new ones invented; and yet they would be none the less known and understood by persons understanding the subject at all, and often by the community at large, to be games of this class. Crow v. The State, 6 Tex. 334. Intending to include all such gaming devices (as they have said in Code, article 413) they furnish, to those who are to administer the law, a test (not the only test) by which the games of this class, whether regular or irregular, or mere inventions, are to be distinguished; and that is, when they are said to be dealt, kept, or exhibited; not `said,' by one class or one section; but said in common language. Nor does the judge on the bench have to derive his knowledge, that it is so said, by the proof of witnesses, and the verdict of a jury, in every county in which he goes. This test indicates and presupposes a quality or fact in the game, by which the class to which it belongs may be known. And although gamblers might change the name of the quality or fact, and call it something else, still the judge, knowing what it was `commonly called,' should nevertheless pronounce it an offense. It may be well to illustrate this. In the regular games of this class there is always a dealer, keeper, or exhibitor, who has an interest in the game directly, or indirectly. And it is for this reason he is the keeper. If a party should establish in his house a table, for gaming purposes, and carry it on himself without betting upon it himself, but to enable others to bet (as in pool) and should, instead of charging a percentage upon the bets, depend upon the custom of the betters at his bar, to compensate him, the evil would be no less, because he perhaps made less. He might even not be present all the time during the playing, in some such case that might be devised. Here, although, acording to the rules of such games, he could not strictly be said to be the keeper, or exhibitor, still the community would not be misled by such a change in the mere mode of deriving his gains; and it would be said `in common language,' that he kept or exhibited the table. And the same would be said doubtless, in the case of one who might keep such a table without any expectation of profit. Which, however, is hardly a supposable case.

"Thus it has been seen, that it is evidently the intention of the Legislature to extend this prohibition over every possible game, falling under this class of gaming tables and banks, however, regular or irregular they may present themselves, or what may be their disguises."

In the two decisions just quoted it was held to be immaterial what character of table was used, while the Whitney case announced a different construction. However, the construction given to the statute in the Whitney case did not last long, for in the case of Chappell v. State, 27 Texas Crim. App., 313, the rule announced in the Estes and Stearnes cases was again adopted by this court, and it was held: "It seems that the status of the table — that is, whether it was made specifically for gaming purposes — can not ordinarily affect this question; it is rather the character of the playing or game which is played that it receives its specific designation, and the cases of Estes v. State and Stearnes v. State, are quoted approvingly, and this later opinion was rendered by the same learned judge who rendered the opinion in the Whitney case, and thus it is seen that Judge White himself in the Chappell case virtually overruled his opinion in the Whitney case, and we can not be expected "to go back into ancient history" and adopt an opinion that the judge who rendered it, himself overruled it, and which has not been followed by this court since that time. We prefer to follow the law as laid down by Judge Roberts and Wheeler and finally adopted by Judge White, as the reasoning in those cases appeal to our judgment, and we think correctly interpreted the intent of the Legislature in enacting the statute. However, in the Chappel case it is said: "Is the game of `craps' as described above, one which in common language is said to be played, dealt, kept or exhibited by a dealer or keeper? We think clearly not. There is no dealer or exhibitor in it. The game is played by the parties throwing dice, the participants in the game, without the intervention of any third or outside party. All the defendants did was to collect five cents for every two throws by the players, evidently, wethink, as pay for the use of his dice and not for table fees." This was an exceedingly discriminatory opinion, holding that the charge was made for the use of the dice solely, and no part of same was for the use of the table which appellant kept, in that case, to be gambled on. However, as fine as this distinction is, it might be claimed we should follow it, if it was not against the great weight of authority, both in this and in other states. In the Stearnes case, supra, hereinbefore copied, it was said: "If a party should establish in his house a table for gaming purposes, and carry it on himself without betting upon it himself, but to enable others to bet, and should instead of charging a percentage upon the bets, depend upon the custom of the betters at his bar, to compensate him, the evil would be no less, because he perhaps made less. He might not even be present all the time during the playing, in some such cases that might be devised. Here, although according to the rules of such games, he could not strictly be said to be the keeper, or exhibitor, still the community would not be misled by such a change in the mere mode of deriving his gains; and it would be said `in common language,' that he kept or exhibited the table. And the same would be said doubtless, in the case of one who might keep such table without any expectation of profit." Judge Roberts was an able and profound lawyer, and recognized and appreciated that the intention of the Legislature was to suppress gaming tables, and he gave to the statute the construction that would effectuate that purpose and intent. Not only was the Chappell case on that point directly in conflict with the earlier opinions of Judges Roberts and Wheeler, but it is also in conflict with a later opinion of this court in the case of Bell v. State,32 Tex. Crim. 192, where it was held:

"`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."

Thus it is seen that both by the earlier and later decisions of this court it is held the facts in this case would render appellant guilty of exhibiting a gaming table, and in a still later case, Bell v. State, 21 S.W. Rep., 366, Judge Davidson held: "The game played is proved to have been `craps.' This is not a banking game under the statutes of this State." And yet in the face of this decision appellant insists on our holding that `craps' is a banking game under the statutes, and if we did so, and he was prosecuted for that offense, he would come before us and insist that we were bound by this decision, and, of course, must not permit a conviction to stand, and thus by quoting one line of decisions, find that it was not a "gaming table" and by another line that it was not a "banking game," and thus go "Scott free," although he does not deny that he was running a gambling establishment. Again, in the case of Mohan v. State, 60 S.W. Rep., 553, this court held: "Here the evidence shows that the parties were playing and betting at craps with dice. Jordan Wagoner exhibited the game and took all bets. He owned the table. Now, if Jordan Wagoner exhibited the game and took all bets, and the parties were playing craps with dice and betting therein against the owner, the one against the many, was this not a table or banking game? Evidently it was. . . . We think the proof sufficiently shows it was a gaming table," citing Stearnes v. State, 21 Tex. 693, and other cases, thus showing that we are not the only one who has delved into "ancient history," as appellant terms the opinion by Judge Roberts. And in the case of Harman v. State, 22 S.W. Rep., 1038, in an opinion by Judge Davidson, this court held:

"Appellant was convicted of keeping and exhibiting a gaming table. He exhibited a `crap table,' at which fifteen or twenty persons were playing or betting. The table was a half circle in form, behind which he stood, and took all the bets from the players, who were standing on the outer side of the table. The table had numbers marked on the surface. Under the rules of the game the players were not permitted to bet against each other, but only against the keeper of the table. He stood on one side of the table, with his money and chips before him, and everybody played at the game on the opposite side, and bet against him. He took the money lost by the players, and paid all bets won by them. This was clearly a gaming table. Stearnes v. State, 21 Tex. 698; Bell v. State (Texas Crim. App.; Austin term, 1893), 22 S.W. Rep., 687. The judgment is affirmed. Judges all present and concurring."

The court was then composed of Judges Davidson, Hurt and Simkins, and this opinion has never been modified nor overruled, and the facts as recited in that case and the facts in this case are identical. The only other case cited by appellant as bearing on this case is Webb v. State, 17 Texas Crim. App., 206, in which it was held that where a person who kept a table upon which was played the game known as fifteen ball pool, he could not be convicted of exhibiting a banking game, although he might be convicted of exhibiting a gaming table. In Chappell's case it was held that where there is no keeper or exhibitor, a man can not be convicted of running a gaming table, and thus if we follow these two decisions, there would be no such offense as exhibiting a table under the construction given. Because if it had a dealer, keeper or exhibitor it is a bank; if it had no keeper, dealer or exhibitor, it is not a gaming table. In these respects these decisions have not been followed, and we prefer to follow the rule as laid down by Judge Roberts in the Stearnes case, followed by Judge Simkins in the Bell case, reannounced by Judge Henderson in the Mohan case, and declared by Judge Davidson in the Harman case, and if the Harman case is the law, there can be no question that the facts in this case render appellant guilty of exhibiting a gaming table. Not only do our courts so hold, but by reference to vol. 14, Am. Eng. Ency. of Law, page 707, it will be found that the great weight of authority so holds. Many cases are there cited, that we do not deem necessary to copy but merely refer to. The distinction drawn between a banking game and exhibiting a gaming table is that where the player bets or pikes at the exhibitor's game, and does not participate in the dealing or playing, it is a banking game; if the player in addition to betting or piking at the game, also deals or participates in playing the game, it is a gaming table. This distinction was clearly drawn in the leading case of Stearnes v. State, supra, by Judge Roberts and has been followed by this court when called to its attention. In this case, it being undisputed that the players threw the dice and appellant, the exhibitor, did not throw dice, but only exhibited the table and took the bets, it was a gaming table.

The motion for rehearing is overruled.

Overruled.