Sanchez v. State , 90 Tex. Crim. 156 ( 1921 )

Appellant was convicted in the 37th District Court of Bexar County of keeping a place for the purpose of being used as a place to bet, wager and gamble with cards and dice, and his punishment fixed at two years in the penitentiary.

In a motion to quash appellant insisted that the allegation that the house in question was situated in Bexar County, was not sufficient. There were two counts in the indictment submitted to the jury which are an exact copy of those set out in Rasor v. State, 57 Tex.Crim. Rep.. If either of said counts be sufficient, the judgment of conviction would be upheld under said good count. We are of opinion that the second of said counts would be insufficient to charge a felony under the recent case of Francis v. State decided at the present term, but we are also of opinion that the first count is sufficient. In De Los Santos v. State, 65 Tex.Crim. Rep.; 146 S.W. Rep. 919, in which the allegations of venue were some what similar to those in the instant case, though hardly as clear, we upheld the allegation of venue, and this case seems to have been followed since. Reverting to that part of the first count in said indictment in which is presented the matter now under consideration, we observe that it is alleged as follows: "In the County of Bexar, and State of Texas Planton Sanchez did unlawfully keep and was then and there interested in keeping a building, room and place for the purpose of being used as a place to bet, wager and gamble with cards, and did then and there keep and was then and there interested in keeping said building, room," etc. This so plainly alleges that the appellant in the County of Bexar and State of Texas, did keep a building, etc., for purposes forbidden by statute, as to leave no room for doubt. It is clear that all the allegations with reference to keeping and being interested in keeping, etc., refer to the same building and room, and it being charged that in said County and State he kept same, we have no hesitation in overruling the motion to quash on this ground.

It was also urged against said indictment that it did not allege that persons did bet and wager at games played with cards or dice. This is not necessary, and has been so held. Art. 559, Vernon's P.C., prohibits the keeping of a place for the purpose of being used as a place to bet or wager; and an offense would be committed by one who kept said place for such purpose regardless of whether the purpose had been carried into actual execution and the place used for the purposes intended, or not. Illustrating this, — one might fit his house with paraphernalia for gambling, and advertise its purpose, attempt to induce patronage and be found guilty of keeping, etc, though no one had yet engaged in actual games therein.

It was also urged against the indictment that it was bad for its failure to allege that said place was not a private residence. This is sufficiently answered by the statement that if appellant kept his place for the purpose of being used as a place for betting and wagering, and to which people resorted for the purpose of so doing, it would be no defense that it was a private residence, and hence no necessity existed for negativing that same was such residence. We further observe that the offense defined by Article 559, supra, may be committed regardless of whether the place be a private residence or not, there being a definition in said statute of what constitutes the place therein referred to.

It was not necessary to allege how or in what manner appellant held or obtained any interest in said house, etc. The other matters urged against the indictment, involving the constitutionality of the law and the method and manner of its passage, have all been passed upon by this court adversely to appellant's contention. A discussion of the authorities cited by appellant might be interesting, but we have examined and considered same and believe nothing could be gained by presenting our views of the several cases cited.

By his bill of exceptions No. 4 appellant complains that witness Stevens was allowed to testify that there was a monte table in the room in question on which was money, and actual betting was in progress, and that appellant was dealing. The bill is entirely defective. The objections stated are as follows: "To which questions and answers the defendant objected, and objected to anything in reference to the tables or games, because the games they have alleged here is with cards and dice; it is not alleged any monte games, but a monte table is a special table, defined by the statute as a `gaming table.' That the defendant is charged with playing with cards and dice." The court properly overruled such objections. It is not shown whether there was any objection made to the questions asked before they were answered, nor does it appear what objections were made to the questions referred to. An objection which is stated as follows: "to anything in reference to the tables or games," would be without merit. Inquiry as to the games played in said house at the time would be entirely proper. However, if the objections which appeared to be intended, were properly before us, we would hold the evidence admissible as showing the purpose for which said room was being used. There was evidence that at the time Mr. Stevens went into said room a game of poker was being played at which money was being bet, and as affecting the question of whether or not the offense committed was a felony, under the authority of the cases of Francis v. State, 90 Tex. Crim. 67; Deisher v. State, 233 S.W. Rep., 978, and Fridge v. State, 90 Texas Crim Rep., 75; recently rendered by this court, it would be necessary to show the purpose for which said room was being kept, that is, that it was for the purpose of being used as a place to bet and wager, etc., and as bearing upon this issue and showing the character, surroundings and use of said room, evidence that other games were in progress besides said poker game, was admissible.

Objection was made to one Munoz, a witness for appellant, being allowed to testify that appellant had an interest of $150 per month in this gambling house. There is nothing in the bill of exceptions presenting this matter which shows any error. The interest of appellant in said house was an issue. Munoz said he had the interest above stated. We are unable to gather from any of the contents of said bill why the facts stated were not admissible. If Munoz knew such fact he could state it. Neither his means of knowledge, nor the method of making same known is attacked in said bill of exceptions.

Appellant asked a special charge to the effect that evidence that he played at certain games and bet on same, in said premises, could not constitute a basis for a conviction for keeping and being interested in such keeping. The refusal of this charge is assigned as error. The case of Bell v. State,84 Tex. Crim. 197, 206 S.W. Rep., 516 is cited as authority. As we understand that case it holds directly the opposite to appellant's contention. In said case proof was made of playing games by the accused. He was charged as the keeper. This court said in that opinion: "His connection, if any, as keeper, is largely dependent upon the fact that he was in and about said house, and knew that gaming was carried on, and indulged in suchgaming." It was thus apparently held that the acts of the accused in playing games might be evidence against him when charged as keeper of the house. What we have above said also substantially disposes of appellant's requested charge that the fact that he dealt or kept banking games could not constitute a basis for conviction herein.

Complaint is made that the court refused to charge the jury that it must be shown that appellant owned or held a lease on the property in question, or owned some interest therein. We can not agree to this proposition. Davis v. State, 68 Tex. Crim. 259; 151 S.W. Rep. 313. Examining the testimony of Senor Munoz as given on appellant's behalf we find that he says with regard to said room: "I was not there the night Stevens was there . . . Planton Sanchez (appellant) was there that night, he had charge of the house there." In his further testimony this witness proceeds: "I had a club over there . . . the club got the rake off . . . the club is all the members, he was interested in it . . . I was treasurer and Planton Sanchez was president . . . he got his part of the money, each man would get his part every month . . . Planton and I got our part each month." As we view the matter it would be difficult to make plainer the proposition, that a gaming house was being run on the premises in question; that games of cards were being there played and money bet on same; also that banking games were being conducted in said premises; that said house was conducted for profit, and that all the members of the so-called club participated in the division of the profits, and especially Munoz and Sanchez, who were not only personally overseeing, dealing and taking part in said games, but were the titular officers of said club, and as such unquestionably kept and were interested in keeping the said house for the purposes set out in the indictment.

Finding no error in the record the judgment will be affirmed.

Affirmed.

ON REHEARING. October 12, 1921.