I think this affirmance is wrong. The evidence in the case does not show a gaming table. If it proves anything, it proves a banking game under all of the authorities that have been called to my attention. See Webb v. State, 17 Texas Crim. App., 205; Chappell v. State, 27 Texas Crim. App., 310; Estes v. State,10 Tex. 300.
Judge Willson, in the Webb case, used this language: "To constitute a bank, there must be a fund of money offered and ready to be staked on all bets others may choose to make against the banker, on the game which he keeps or exhibits. This element is the distinguishing feature between a bank and a gaming table, and is perhaps the only real difference between them. (Stearnes v. The State, 21 Tex. 692; Bish. on Stat. Cr., Sec. 866.)" The Webb case is directly in point in the instant case.
In the early case of Estes v. State, supra, the defendant played at a game called "rondo," played upon a billiard tabel. The court said in that case as follows: "We do not understand that it is literally the table or structure, whatever that may be, on which the game is played that gives 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."
Judge White, in delivering the opinion in the case of Chappell v. State, supra, said: "In the case of Stearnes v. State,21 Tex. 693, it was held that `Grand Raffle,' as described in that case, was a gaming table exhibited for gaming. It was further said in that case that `it is difficult to imagine any species of table or bank, or gaming device resembling either, that is kept for gaming, that would not be included. Parties are liable to be misled by the words `table and bank,' by *Page 619 attributing a meaning too restricted and literal. . . . There is no question in our minds but that the Stearnes case showed a case of exhibiting a gaming table and bank. In Webb's case, 17 Texas Court of Appeals 205[17 Tex. Crim. 205][17 Tex. Crim. 205], defendant was convicted upon a charge of unlawfully keeping and exhibiting `a bank for gaming purposes,' the evidence showing that the game was fifteen ball pool, played upon a billiard or pool table, and in which game the loser was to pay for the drinks or cigars ordered from defendant's bar by those engaged in the game. It was held that the game proven was not a bank but a gaming table, and it was said `the statute uses the words gaming table or bank, evidently meaning two different things.'" The difference, as Judge Willson said in Webb's case, 17 Court Crim. Apps., 205, is that in a banking game it has a dealer of one against the many, who takes or receives all bets and pays all losses. This was not the condition shown in the Stearnes case, 21 Tex. 693, which was held to be a gaming table. The banking game of craps when it is played with a dealer or one against the many, is a banking game. This seems to be well settled, as I understand, under all the authorities. I do not propose to enter into a discussion of the question as the distinction has been kept up in all the authorities from Estes v. State, supra, to the present time. My brethren, I think, are clearly in error in holding that a banking game of craps is a gaming table simply because the dice were thrown on a billiard table used for that purpose. I can not, therefore, concur with them and enter this my dissent. I do not care to discuss the case further.
ON REHEARING. June 5, 1912.