Stewart v. State , 34 Tex. Crim. 33 ( 1894 )

Appellant was tried in the County Court of Smith County, charged with unlawfully betting at a game played with dice, called "craps," and not at a private residence, and was convicted, and his fine assessed at $10, from which this appeal is prosecuted.

The only question presented by the record is whether or not the room in which the game was played is a private residence. Both counsel for the State and defendant have prepared able briefs, from which it clearly shows that they have given this question very careful study and consideration. The room was used by Jim Spears, a single man, for a bedroom. It is up stairs over the saloon of Thomas Smyres, but has no connection with the saloon, other than being in the same building. A stairway leads directly from the sidewalk to the hall upon which the room is situated. The room is furnished with bed, table, washstand, trunk, and clothing, and was used by Spears for the purpose of his bedroom. Under the weight of authority, we think this room the private residence of Spears, and that the motion for a new trial should have been granted. For the reasons given, the judgment of the court below must be reversed, and the cause remanded.

We respectfully recommend to the Legislature that the proviso to article 364, Penal Code, exempting from prosecution those who bet at this game at a private residence, be stricken out.

Reversed and remanded.

SIMKINS, Judge, absent.