The appellant, through his attorneys, has filed a motion for rehearing earnestly contending that this court in the original opinion erred in several particulars. Knowing the ability, learning, and sincerity of appellant's attorneys in this case, notwithstanding the great length of the opinion of the court before, we deem it appropriate to go some further into the various matters presented in this motion for rehearing. In considering this motion we have again thoroughly gone over the record and all the questions raised. We will probably not take up and discuss each of them, as it is unnecessary, yet we have fully considered each.
1. Complaint is made that this court erred in the original opinion *Page 201 in holding that the Act of the Thirtieth Legislature, p. 107, is not unconstitutional on the various grounds originally attacked. But particular emphasis is laid upon that provision of the Constitution contained in article 3, section 38, requiring the presiding officers of each house to sign bills when passed, after their titles have been publicly read before signing; "and the fact of signing shall be entered on the journals," contending and claiming that the said journals did not show that the said bill had been so signed, and claiming that the said bill as signed is of an entirely different caption from the one as promulgated and published as the said Act of the Legislature.
Appellant's bill making this contention claims to show, and we believe substantially shows, all that the journals of the two houses of the Legislature contain pertaining to said bill. This bill of exceptions, and the journal of the house itself, shows that "House Bill No. 84" was introduced in the Legislature by Mr. Dean on January 14, 1907, the sixth day of the regular session of the Thirtieth Legislature. This journal and bill of exceptions show that this bill is "House Bill No. 84," "A bill to be entitled an Act to amend article 388 of the Penal Code of the State of Texas so as to make it unlawful to bet at a game played with dice at any place." It is not shown by this bill of exceptions, nor by the house journal, neither is it necessary under the Constitution, what the full contents of that bill, as originally introduced, was, nor that the entry in the journal made by the journal clerk was the whole of the title of the said bill No. 84, as introduced by Mr. Dean. The bill of exceptions and the journals of the house and senate show affirmatively and clearly that this identical bill was properly referred to one of the house committees; that it was afterwards reported by that committee to the house, read a second time and amended in several particulars, read a third time and was finally passed by the house, properly transmitted to and received by the senate, properly referred by the president of the senate — the Lieutenant Governor — to one of its committees, reported by the committee to the senate with certain amendments, amended in some particulars and finally adopted by the senate after being severally read three times, properly transmitted back to the house with a report of what the senate had done thereto, then printed in the house journals in full as passed by the senate; that the house refused to concur in the senate amendments on the motion of Mr. Dean, the author of the bill, and requested a free conference committee to adjust the differences between the two houses. The journals of the house and senate both show, as stated by said bill of exceptions, that this free conference committee was appointed by each house. Then appellant's bill of exceptions itself and the journals of both the senate and house show:
"Pages 1100 to 1103 of the house journal, and pages 748 to 752 of the senate journal, both of which were offered in evidence, show the free conference report to both the house and the senate, and the *Page 202 same is in all things identical with the bill as finally passed and promulgated as law in the Acts of the Thirtieth Legislature and under which the indictment in this case was drawn.
"Page 572 of the senate journal and page 1103 of the house journal each show the adoption by the respective bodies of the free conference committee report, both of which were offered in evidence.
"The following was offered in evidence from pages 794-5 of the senate journal: Bills and resolutions signed. The Chair (Lieutenant Governor Davidson) gave notice of signing, and did sign, in the presence of the senate after their captions had been read, . . . House Bill No. 84, `An Act to amend article 388 of the Penal Code of the State of Texas, so as to make it unlawful to bet at a game played with dice at any place.'" (In this journal entry other bills were also identified and shown to have been signed.) "Pages 1154-5 of the said house journal: Bills signed by Speaker. The Speaker signed today, in the presence of the house, after giving due notice thereof, and their captions had been read severally, the following bills: . . . `House Bill No. 84, An Act to amend article 388 of the Penal Code of the State of Texas, so as to make it unlawful to bet or wager at any gaming table or bank or pigeon hole, or jenny lind table, or nine or ten pin alley, such as are in the six preceding articles, or to bet or wager any money or anything of value at any of the following games, viz.: poker, dice, jackpot, high dice, low dice, dominoes, euchre with dominoes, etc.; providing for the search and the seizure of any gambling device, equipment or paraphernalia and its destruction, and generally to suppress gambling, repealing all laws in conflict herewith, and declaring an emergency.' (In this journal entry other bills were also identified and shown to have been signed.)
"Page 1158 of the house journal, which was introduced in evidence, shows that House Bill No. 84 as finally amended by the free conference committee was duly and properly enrolled."
The journals of both houses show that there was no other "House Bill No. 84" than the said bill introduced by Mr. Dean and traced by this bill of exceptions and the journals of both houses through both houses from the first introduction thereof until the final passage, signing and enrollment and approval by the Governor. The journals of each house do not in every instance give the full title of the said bill. It is sometimes identified simply and solely as "House Bill No. 84;" sometimes in addition a part of the title or caption thereto is given; at other times more of the caption or title is given, and sometimes the full title or caption is given as it was finally enacted into a law. In every instance it is designated "House Bill No. 84," whether only part or all of the caption is given. To take the record of the journal in each house from first to last, there is not a shadow of doubt as to the identity of "House Bill No. 84" and that the bill as finally passed and became the enactment of the Legislature under which this prosecution was had, is that identical *Page 203 bill and no other, as identified by these various methods and statements thereof. Neither is there a breath of suspicion that said "House Bill No. 84," is any other bill than the one which finally became the enactment of said Legislature. It occurs to us that with this tracing of this "House Bill No. 84" and unquestionably identifying this particular bill as the final Act of the Legislature and no other, that when the senate journal, as shown thereby, and the said bill of exceptions of the appellant states pointedly, clearly and distinctly as follows:
"Bills and resolutions signed. The Chair (Lieutenant Governor Davidson) gave notice of signing and did sign in the presence of the senate after their captions had been read . . . House Bill No. 84" (then the journal clerk entered only a part of the title to the bill); and when the house journal and appellant's bill of exceptions shows: Bills signed by Speaker. The Speaker signed today, in the presence of the house, after giving due notice thereof and their caption had been read severally, the following bills, . . . House Bill No. 84" (and then the journal clerk entered only a part of the title to this Act,, but more of it than the senate journal showed), and all this, followed up by the printing of this bill in full, word for word and letter for letter in the journal of each house, and as stated by appellant's bill of exceptions, "and the same is in all things identical with the bill as finally passed and promulgated as law in the Acts of the Thirtieth Legislature, under which the indictment in this case was drawn;" and all this still followed up by the Act as thus finally passed, being filed in the Secretary of State's office as an archive thereof, on which original bill is shown the genuine signature of the proper officer of the senate that said bill passed the senate by a vote of twenty-nine for and only one against (the senate journal gives the names of each senator who voted for and the one who voted against), and the genuine signature of the proper officer of the house that said bill passed the house by a vote of ninety-nine for and seven against (the house journal giving the names of each member who voted for and against the bill), and also upon which bill is the genuine signature of the Lieutenant Governor, the Hon. A.B. Davidson, president of the senate, and of the genuine signature of the Hon. Thos. B. Love, Speaker of the House of Representatives, and the genuine signature of the Hon. T.M. Campbell, Governor of Texas, in approval of said bill, would satisfy any and every one beyond a shadow of doubt or breath of suspicion, that this identical bill and no other as originally and all through the journals designated, "House Bill No. 84," is the bill shown to be signed and that the journals of both houses affirmatively show "the fact of signing" it. It seems to us to contend otherwise is sheer folly.
So that we adhere to our original opinion that the said Act of the Legislature is not unconstitutional on the said grounds on which it is attacked. In addition to the authorities cited in the original *Page 204 opinion on this point, we add these: State v. Larkin,90 S.W. 917; Presidio County v. City National Bank, 44 S.W. Rep., 1071; Ball v. Presidio County, 27 S.W. Rep., 706; Railroad v. Stewart, 48 S.W. Rep., 804.
As stated in the original opinion, the authorities therein cited establish, beyond question, the validity of the said Act of the Legislature, and that the same is not in any way unconstitutional.
2. In view of the attack of the judgment on the claimed insufficiency of the evidence to show that appellant was the keeper of said room, and of several charges requested and refused, and the overruling of appellant's motion for a continuance, we deem it appropriate to give the substance of the testimony of the various witnesses.
Guy McNamara, who was the constable of precinct No. 1, in the city of Waco, where the offense with which appellant was charged is alleged to have been committed, testified in substance: That he knew the appellant and the Waverly Hotel in the city of Waco, and by his testimony — as all of the other witnesses did — fixed its locality; that in the late summer of 1908 he and his deputy, Early Sparks, went into this hotel in the daytime and found appellant and others gambling with cards in room 6; that he did not then arrest them, but told them if they would promise not to gamble up there any more he would not then make them pay a fine; they promised they would not. A few weeks afterwards he caught appellant and others in the same room gambling with cards; both times they were betting and had their money on the table in front of them; appellant was in all the games. Witness later saw others gambling there; when he caught them in the first game appellant at his demand opened the door from the inside and let him in.
Charley Slaughter testified: That he was in the sand and gravel business in Waco; knows the appellant and identified the Waverly Hotel and room 6 therein; he played poker and gambled in said room in November or December, 1908; Parshall was in the game; there were four in the game; he was invited by appellant to go there and play poker and gamble; appellant asked the witness when they were down in the saloon if he did not want to play a little poker; appellant told him that a couple of country fellows besides himself and witness would be in the game. The constable caught them in this game; none of the parties attempted to run, but one of them got on the bed and covered up his head with a pillow; on this occasion appellant opened the door and let the constable in; there was a bed and other bedroom furniture in this room; they all stopped playing before the constable was let in, and they hid or tried to hide all of the cards, money, etc.
Bud Dunn testified: He was in the saloon business; knew appellant and the Waverly Hotel and room 6 therein; his place of business was about a block and a half from the hotel. "I have played some poker up there in the Waverly Hotel," and was there when the constable *Page 205 made a raid and arrested him and others. That was some two to four months before the trial of this case. Appellant was in the game; they were playing poker and gambling money. "When I played up there I paid fifty cents, which I understood was for cleaning, up the room. It was my understanding that everybody who took part in the game were to pay fifty cents, but it was my understanding that there was to be no `take-off' in the game. A `take-off' is gambling-house rent, where they pay so much an hour to engage in a game. I do not think that Parshall ever told me what it was for, but I won't be positive; I think it was just an understanding that we should pay that much. My understanding was that it was to go to cleaning up the room. That was never explained to me directly by Harry Parshall; it may have been explained to me indirectly; I just paid that fifty cents. Before we all went up to play it was understood that we would get that room to play in. I do not know that we said anything about the room to anybody, but we just went up there to play poker. We knew that we could get a room up there because it was a hotel, and a hotel lets rooms. I went right upstairs when I got there. We met Jim Hancock upstairs, and he led the way to this room. The whole bunch was up there in the hall. Nobody at all was in the room until we went in. We had just started to play when we paid that fifty cents; someone threw down fifty cents and said `here's me,' and all the rest did the same. We just put the money on the table. My understanding was that this fifty cents was for cleaning up and taking care of the room, something like that. We did not get that understanding then; that had been my understanding before; I had played up there before. I do not remember who all was in the other games that I played up there. I guess the thing that impressed that particular game on my mind was the fact that we all got arrested. I had to pay a fine for this game, and I guess that made me remember it better than the others. When we all said `here's me' with fifty cents I do not remember whether Parshall paid fifty cents or not. As well as I remember, all the others paid fifty cents. I was not the only man that paid fifty cents. . . . A bunch of people playing cards there in a room, chewing tobacco, smoking, and spitting would litter up a room a right smart. . . . We spoke of sending out and getting some whisky that day. We very often sent out and got a lunch. . . . I do not remember any of those details (about the lunch, getting whisky, etc.,) because poker playing with me is just like anything else."
Arthur Crow testified: He was a farmer; lived at Gholson up above Waco a short distance; he knew the Waverly Hotel and has lived in the county since 1881. "I have been engaged in some gambling there (at the Waverly Hotel) within the last few months. That was some time last fall." They played poker, and he shows that there were some four to six persons engaged in the game. That was one of the games in which the constable came up there. "I went up *Page 206 there to that hotel to play poker. Charley Franks suggested to me that we go up there and play poker. I had known him five or six years."
Charley Franks testified: He lived in Waco and was a bartender; worked at the Horse Shoe Saloon; knows the Waverly Hotel and the appellant. Has known him several years. He went up to the Waverly Hotel to play poker; does not remember all who were in the game besides the appellant and himself, but names four others. "We had not been playing but a few minutes at that time when in walked Guy McNamara." He arrested all of them. "I do not know how you would state what it was for, but we gave fifty cents to pay for cards, or something. We all paid fifty cents . . . put it on the table. Mr. Parshall never said a word. I gave that fifty cents because I supposed that was what they all did. . . . I only know that I paid fifty cents to play. It had not been but a few minutes since we paid that fifty cents before Guy McNamara came up there. I had been up there before this time that Guy McNamara came up there and arrested us." He fixed this time at shortly before Christmas. "I think I have been up there since Christmas. I went up there to play poker. A fellow from the country told me that he would stake me to play poker and I took up that proposition. I had been up there two or three times previous to this. I was under the impression that we paid that fifty cents for cards or expenses — something like that. We did not have any lunch brought up there that time while I was there. I was not there but a little while until Guy McNamara came. This was in room 6. There was a bed in there. The room was furnished up for a bedroom. I suppose Parshall paid for cleaning up the room."
Eugene Crump testified: He lived in Waco and was in the real estate business; knew the appellant; was in the Waverly Hotel about three months before the trial. A poker game was going on there that night; he had been around the hotel several times. "I do not remember how many games I have seen there in the hotel. I did not stay very long the night I was up there. They were playing poker when I left. The reason I left was that the game was full. I was looking for a poker game when I went up there. I do not think I played. The game was full. By being full I mean that the chairs were all taken; the table was surrounded."
Dr. S.A. Morse testified: He lives in Waco and has lived there for several years. Knew appellant for two years and the Waverly Hotel; was there when the game was raided before Christmas; has been there since but could not tell the exact times. "I could not tell you the men's names that were in the game. I think that Parshall was in the game. He was in the game for one. I think there were four or five or six probably in the game. I do not think I have been there more than once since. I have been there probably three times altogether. I am not certain about the number of times I have been *Page 207 there. I have been there twice since Christmas that I know of. I do not know the man's name who went with me. I met him at the St. Charles. He was in the brewing business. We went up there to the hotel to play poker, of course. I was told that there was going to be a good, square game up there — business men. There is a lot of difference between a square game and a skin game. Parshall was not at all of those games. I think he was in one or two. I do not know whether I had any conversation with any of the hotel people or not. Someone downstairs told me where the room was. I do not know who it was, whether it was the clerk or someone else. There may have been one or two persons sitting around there in the room who were not engaged in the game. I spoke to Parshall about the door not being locked and he said that was all right; that it did not amount to anything. When the officers came down there and arrested us they first got up and looked over the transom and then came in and arrested us. We did the best we could under the circumstances. I do not remember ever paying anything for being in the room but once or twice; that was fifty cents; they said that fifty cents was for the bed. Sometimes some of the boys would use the bed. Some of the boys, I believe, in the game told me that this fifty cents was for the bed. There was one bed in that room. I think there were seven players up there when we paid that fifty cents. I paid fifty cents; the room we were in was fitted up as a bedroom. Each one of the rooms that we were in was. The Waverly Hotel is a place of considerable size. A bunch of men playing cards, chewing tobacco, smoking and spitting around litter up a room a right smart. I think there was a lunch sent for with this money that was taken up there. There were cigars, lunch, whisky and so on sent for. That might be what that money was for, so far as I know; I do not know what it was for. Each individual paid fifty cents. There was only one fifty cents taken up in the same game. We had lunch several times. The latest we ever played there was probably about two o'clock at night. We went to playing about ten or eleven o'clock. I never did pay anything directly for the lunch. I do not know what the others did."
Mrs. M.B. Koller testified: She worked at the Waverly Hotel some time during the fall of 1908; was chambermaid. She worked there five or six weeks before Christmas. Identifies room 6 therein. "I had occasion, while I was there to clean up that room as a part of my duties as chambermaid; I was employed by Mr. Parshall. At that time he purported to have charge of the hotel there. I found a center table in room 6 and some decks of cards. I saw men go backward and forward to this room. I saw Mr. Parshall go in and come out of that room; I did not know any of the other people at all; the only one I knew was Mr. Parshall. That door was always locked. I worked up there about a week. That happened every day while I worked there. I asked Mr. Parshall for a job when I was *Page 208 employed there. He referred me to Mrs. Parshall. He was the man I looked to for my pay."
Jim Hancock testified: He was in the liquor business in Waco; knew appellant and the Waverly Hotel. "I have been in poker games up there in the Waverly Hotel. One when Parshall was present. I could not say how many games I have been in there since the time Harry Parshall was present but a few. Parshall was in the game with the rest of them. I could not say how many were in the games there. I never paid any attention to that. I do not pay any attention to poker games, or anything of that kind, unless something comes up to make me remember it. Guy McNamara came up there and arrested us."
Early Sparks testified: He was deputy constable under McNamara; knew the Waverly Hotel and appellant. He and McNamara caught a game with cards there two or three months before the trial. Appellant was in the game. He and the constable went upstairs and he climbed up and looked over the transom and saw several of them playing poker; saw the whole game over the transom; they arrested them and they all paid a fine.
Will Nichols testified: He knew the Waverly Hotel and appellant; was present with appellant and others in a poker game in the hotel when McNamara made the raid. McNamara told them that he would let them go that time if they would not play up there any more. Thinks Parshall said he would not play if he would let him off then.
Jim Riddle testified: He lived in Waco for many years; knew the appellant several years and the Waverly Hotel; he was in a game of poker in November, 1908, and names four others, including appellant, besides himself, who were in the game. They commenced the game in the evening and was arrested in the game that night about 12 o'clock. "We were playing with cards. I suppose we had twelve or fifteen decks of cards. I do not know where they came from. I did not take any of them with me. I think there were seven engaged in the game. The occasion for us having so many decks of cards was that people sometimes get so they don't like one deck, and they want to change decks, something like that. I do not know how came me to go up there that time. I was by myself when I went up, I suppose. The place where we were playing was upstairs. I suppose the reason that I found it when I had never been up there before was that I had been told that it was up there. I must have been told that it was up there; I do not remember the circumstances. I could not tell you why I went up to this room at all (room 6). I suppose I was looking for a poker game or I would not have been up there. Appellant was in the game. I do not think he was there all the time from the time we went there in the afternoon until 12 o'clock that night. I do not remember about him going out and coming in, but I do not think he played all the time during the time we were there." *Page 209
W.B. Hays testified: He was in the fire insurance business and real estate business in Waco with his brother, and the firm name of the business was Hays Brothers. "We receive the rents for the Waverly Hotel. The rents are left with us at the suggestion of Mrs. Olive, who is the owner of the building, and we send the money to the bank. I think I understand who is supposed to pay the rent on the hotel, but who actually does pay it I could not say. I understand that Parshall is the one. I think he has had the Waverly Hotel about a year. The property is owned by Mrs. A.B. Olive. She is not here. I think we have been receiving the rents through this year. I do not remember of ever going around to the hotel but once; I went around to see Parshall and he was not there. A young man was in the office; I do not know who he was. The matter of repairing the hotel is a matter between Parshall and Mrs. Olive. I do not think there has been any repairing done recently. There was some little repairing something like six or eight months ago. I do not know, except as a matter of general hearsay and general understanding, who runs the Waverly Hotel. I have nothing to do with the transaction of renting. I do not know except in a general way of Parshall having any rental contract with Mrs. Olive. I do not know personally that Parshall exercises any control over those premises."
Mrs. M.L. Scott testified: She knew appellant and has known him since she went to work there in November as chambermaid. She worked there in November of 1908. Mrs. Parshall employed her; she believed she had no conversation with appellant in regard to working there. Mrs. Parshall was his wife. "I witnessed a game of cards up there in those rooms one time. That was on last Thanksgiving day. It was in room No. 6. Mr. Parshall was there in the game. I do not know exactly how many played in the game. Three or four sat around the table. I saw cards and chips on the table. I suppose they were poker chips. I sometimes had occasion to clean up this room No. 6. A big iron table was in the room. Sometimes Mr. Parshall told me not to clean up the room. Mr. Parshall paid me off each time. He paid me off himself. His boy brought me the money the time he fired me. His boy came and told me that his father had made other arrangements and that they would not need me any more. That was young Parshall, Harry Parshall's son. Parshall just told me sometimes to let it (room 6) alone, and I left it alone. When I did clean it up I think I found some poker chips there. I have something here that I found in the room there (producing poker chips). I found those things and others like that in there. I also found gaming cards in there. There were several loose decks of cards there that had been left in the room."
Early Sparks reintroduced testified: He identified the Waverly Hotel by its number and street, corresponding with the description in the indictment. Speaking of the Waverly Hotel, he said: "That is *Page 210 a good sized building, and I would judge that there are thirty or forty rooms upstairs. I do not know that I could say for certain who owns the Waverly Hotel. Harry Parshall is boss and proprietor down there." On cross-examination: "I have never lived at the Waverly Hotel since Parshall has been there. I have never rented a room there. I have eaten there. I do not remember who was in the clerk's office when I was there. I know of my own knowledge that Harry Parshall is the proprietor of that hotel, because he looks after the interests of it. I have seen him looking after the interests of it around the hotel there; he is the main man around there. I guess my testimony that Parshall is the proprietor down there is a conclusion. I do not know how many children Harry Parshall has down there; he has a wife, I think, and two or three boys. As a matter of fact, I do not know whether Harry Parshall is proprietor of the hotel or not."
The testimony establishes and clearly authorizes the jury to believe beyond a reasonable doubt that the appellant was the keeper of room No. 6 in the Waverly Hotel as described in the indictment; that while apparently it was fitted up and probably occasionally used as an ordinary bedroom in the hotel, that it was also practically continuously used and kept by appellant as a place to gamble with cards and that it was practically continuously for months during the latter part of 1908 and the early part of 1909, so used and kept by him and resorted to for that purpose. That the appellant received the fifty cents, which was paid by each of the other persons who played in the game, for the lunches, cigars, whisky and cleaning up of the room during said months. The conviction is brought to the unprejudiced mind by this testimony, which can not be gainsaid, that this room in this hotel was known by persons who know such things as a place that was kept for gambling, and that gambling was practically continuously carried on therein for months during the latter part of 1908, and the early part of 1909, and that appellant was the keeper thereof, and that this evidence directly and expressly connects the appellant with said room as the keeper thereof for gambling purposes and that it was a common resort for that purpose. Many persons, from four to eight, and a greater number, were many times during said months shown by this testimony to have been gambling there. They went there for that purpose, knew that they could gamble when going there. So that the testimony clearly justified the jury in finding the defendant guilty as charged and in our opinion no other verdict could have been rendered than that of conviction, by an honest, unprejudiced jury.
3. It is claimed that this court erred in holding that the motion for a continuance by the appellant was correctly overruled. This was the first application for a continuance. The diligence shown is that a few days after the appellant was arrested under the indictment, on March 11, 1909, he caused a subpoena to be issued for the witness *Page 211 Weathered, commanding the witness to be present at the trial on March 24, 1909, which seems to have been the day that the case was first set for trial. The witness was properly served with this, but with no other process or subpoena to appear on March 24, 1909. The motion shows that the case was later set for trial on March 29, 1909, and says: "Said witness George Weathered, duly notified that this cause was so set and that said witness had never disobeyed said subpoena until the call of the case on March 29, 1909;" that immediately after the case was called and the witness did not answer on March 29, 1909, appellant on that day, March 29, 1909, had an attachment for him and that the witness did not thereafter appear. The motion for continuance further shows that the witness was not absent by the procurement or consent of the defendant, and says: "This defendant alleges, sofar as he knows there is no reasonable expectation that the attendance of the witness can be secured during the present term of this court." Article 597 of the Code Criminal Procedure, in prescribing the requisites of a first application for a continuance by the accused, states that it shall be necessary, if the same is on account of the absence of a witness, to state under oath the diligence which has been used to procure his attendance and it shall not be considered sufficient diligence to have caused to be issued, or to have applied for a subpoena in cases where the law authorizes the issuance of an attachment.
Article 518, Code Criminal Procedure, says: "It shall be understood that a witness refuses to obey a subpoena if he is not in attendance on the court on the day set apart for taking up the criminal docket, or any day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness."
Article 524, Code Criminal Procedure, is, "When a witness who resides in the county of the prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to so appear, the State or the defendant shall be entitled to have an attachment issued forthwith for such witness." Appellant's motion for continuance clearly shows that the said witness was not in attendance on March 24, the date he was subpoenaed to be present, but states "and said witness George Weathered, duly notified that this case was so set" (for March 29, 1909), and then states that said witness had never disobeyed said subpoena until the case was called on March 29, 1909. When he was notified otherwise than by subpoena is not shown, nor bywhom he was notified otherwise than by said subpoena is not shown. We take it that the appellant or someone for him undertook to take the place of the process of the court and have the witness to attend at some other time different and later from that shown by the subpoena. Unquestionably then the appellant undertook to secure the attendance of the witness without any subpoena or attachment for him on March 29 and after he had failed to obey the subpoena by attending on March 24, the day it required *Page 212 his attendance. When he failed to appear on March 24, under the above statutes, the appellant clearly had the right and it was his duty to then procure an attachment for the witness, but, instead of this, he relies upon himself or some other to procure the witness, without the proper process of the court. This court, in the case of Long v. State, 17 Texas Crim. App., 129, says:
"The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. `It shall be understood that a witness refused to obey a subpoena, if he is not in attendance on the court on the day set apart for taking up the criminal docket or any day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness.' (Code Crim. Proc., art. 488.) Where a defendant is relying alone upon the service of a subpoena, then his application for continuance, in order to be good in point of diligence, should affirmatively show that that witness was in attendance on the day set for taking up the criminal docket, and thereby excuse his failure to resort to an attachment. The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments. (Walker v. The State, 13 Texas Crim. App., 618.) Defendant's witness in this case was not shown to have been in attendance when the criminal docket was taken up, and his failure to procure an attachment for him was such want of diligence as would deprive him of his right to a continuance; and the court did not err in overruling his application." In the case of Hutchinson v. State, 6 Texas Crim. App., 469, when the appellant in that case relied upon the promise of witness to attend but who did not attend — without a subpoena — this court says:
"Defendant further states in his motion that said East, and one Vaughn, who resides in Brown County, are material witnesses to his defense; that defendant had never had them subpoenaed because they both told him that they would appear at the term of the court when the case was tried, and testify; and that defendant, relying on their statements aforesaid, failed to have them subpoenaed. If the defendant did not take the necessary steps provided by law to secure the attendance of his witnesses, but relied alone upon their promises to be present at the trial, he took the risk, and must suffer the consequences." Again, where the appellant had had process issued, but under the direction of the court had turned it over to the officer of the wrong forum for execution and thereby failed to secure the attendance of the witness, in the case of Skipworth v. State, 8 Texas Crim. App., 135, this court says:
"The law requires of a defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise, in securing the attendance of his witnesses, its mandate is inexorable and the trial must proceed. In terms most explicit it informs the defendant and *Page 213 his counsel what shall constitute diligence, and if they see fit to rely upon matters outside the law to excuse their noncompliance with the law, they must take the consequences." See also Walker v. State, 13 Texas Crim. App., 618; Massie v. State, 30 Tex.Crim. Rep.; Hill v. State, 18 Texas Crim. App., 665; Mixon v. State, 36 Tex.Crim. Rep.; Harvey v. State,35 Tex. Crim. 545.
Besides this, the testimony of all the witnesses introduced, without doubt and without question, shows how and in what manner the said room No. 6 was fitted up and used and if the witness Weathered had testified to anything different from what is established by the testimony of all of these witnesses, it is apparent his testimony could not probably be true. See subdivision 2, note 643, p. 412, of White's Code Crim. Proc., for a large number of cases collated and cited on this point. We adhere to the opinion that there was no error committed by the lower court in overruling appellant's motion for continuance.
4. Appellant next urges in the motion for rehearing that this court erred in holding that the lower court did not err in refusing to give appellant's requested charges No. 2 and No. 6, which are as follows:
No. 2. "You are charged that by `kept for the purpose,' as that term is used, is meant the chief purpose for which the same is set apart, used and maintained; that is, the reason, the object, for which the same was kept, as distinguished from the occasional use to which same may have been appropriated."
No. 6. "In this case you are instructed that it devolves upon the State to prove affirmatively by evidence, beyond a reasonable doubt, that the defendant, Harry Parshall, personally kept or was interested in keeping room No. 6, as the proprietor thereof, or that said room was under his personal control and management. Now, if from the evidence, or from the lack of evidence, you have a reasonable doubt on these questions, you will acquit the defendant, regardless of your findings on any other issues submitted to you in this case."
Charge No. 2 does not announce a correct statement of the law. It was not necessary that kept for gaming had to be the chief purpose for which room No. 6 was set apart. The law is that if it was kept for the purpose of gaming by the appellant and so shown by the evidence he was guilty under the statute under which he was prosecuted, even though the room may have been put to other uses, and even though its principal use was for some lawful object such as being used as a bedroom in the hotel and the law applicable to the question was aptly given in the court's charge. Toll v. State, 40 Fla. 169; State v. Eaton, 85 Me. 237; State v. Mosby, 53 Mo. App., 571; Smith v. State, 52 Ala. 384; Ulsamer v. State, 11 Ohio (reprint), 889.
Neither is charge No. 6 the law of this State under the statute and count of the indictment, under which the appellant was *Page 214 convicted. While it was proper to introduce proof by the State tending to show that the appellant was the proprietor of the Waverly Hotel and of room 6 thereof for the purpose of showing that he kept the room as denounced by the statute, yet it was not necessary to show, in order to sustain the conviction under the clause of the statute under which he was prosecuted, that he was the owner, proprietor, etc., thereof. Lett v. State, 21 S.W. Rep., 371; 14 Am. Eng. Ency., 713. If he had been convicted under another clause of the law under the count in the indictment charging that he knowingly permitted the room to be used as a gambling room, then it would have been necessary and proper to have given this charge No. 6, because it was applicable to that phase of the law and one count of the indictment, but it was not necessary or proper to have given it, under the count wherein the defendant was convicted.
Besides this, the charge of the court, we think, sufficiently and aptly submits all of the questions under the count in the indictment under which appellant was convicted. Article 723, Code Criminal Procedure, prohibits this court from reversing a judgment unless the error of the charge of the court or the refusal to give a requested charge as appears from the record was calculated to injure the rights of the defendant. We think there was no error in the charge of the court and no error in refusing to give the charges requested by appellant; but even if there was, it is our opinion that such error was not calculated to injure and did not injure the right of the appellant.
5. The next complaint by appellant is that this court erred in holding that the lower court did not err in excluding the testimony of Early Sparks on appellant's motion, as shown by bill of exceptions No. 9.
In order to show this matter fully it will be necessary to copy this bill of exceptions in substance, at least. It is as follows:
"While the State's witness, Early Sparks, was on the stand the State's attorney asked him the following questions: `Question: We ask — who runs, who is proprietor, boss of the Waverly Hotel?' To which he answered: `Harry Parshall is proprietor down there.' The following questions were then asked by counsel for the defendant and answered, as shown by the following questions and answers: `Q. Have you ever lived at the Waverly Hotel? A. No, sir. Q. Ever rented a room there? A. No, sir. Q. Ever eaten there? A. Yes, sir. Q. Do you know who was in the clerk's office when you ate there? Did you register? A. I do not remember. Q. How do you know of your own knowledge that Henry Parshall is proprietor of that hotel? A. He looks after the interests of it. Q. How have you seen him look after the interest of it? A. Around the hotel. Q. What have you seen him do? A. Why, I have just seen him around there acting like he was the proprietor; I judge he was the proprietor. Q. That is just exactly what we are getting at; is your testimony a conclusion? A. I guess it is a conclusion. Q. Harry Parshall has a *Page 215 wife and seven children there at that hotel? A. I do not know how many. Q. He has one or two grown sons? A. Yes, sir; two or three boys about grown. Q. You have seen the boys exercise control there just as much as you have him? A. I have seen one of his boys on watch there at night. Q. As a matter of fact you do not know whether he is actually the proprietor of that hotel or not, do you? A. Well, I do not know that I do.'"
The appellant's attorneys then moved to exclude all of this testimony "because it is the opinion of the witness, hearsay, and not proper testimony to go before the jury with reference to proving the proprietorship of that hotel, and it shows conclusively that he has no personal knowledge of who is the proprietor."
It is our opinion that the testimony of this witness, as detailed by this bill of exceptions, shows that it is not hearsay, nor the opinion of the witness, nor does it show conclusively, as claimed by the bill, that he had no personal knowledge of who was the proprietor; and that it was proper testimony to go before the jury. The evidence of the witness shows that he did have some knowledge and some means of knowledge of testifying positively to what he did, tending to show that the appellant was the proprietor of the hotel; that he had been about it; that the appellant looked after the interest of it and around the hotel for that purpose. Appellant's objections that he was further made to say on cross-examination by appellant's able attorneys that he "guessed his testimony was a conclusion and that he did not know, as a matter of fact, whether appellant was the actual proprietor of the hotel or not," goes to the weight of the testimony and not to its admissibility. In our opinion it was clearly admissible. The whole testimony of the witness in which by cross-examination he was led to cast some doubt upon his own testimony was all for the jury to consider and not for the court to conclude that the testimony was inadmissible. There was no error in not granting the appellant's motion to strike out this testimony.
6. In view of appellant's earnest insistence that the court erred in not reversing this cause, because several of the jurors talked with persons over the `phone, after they were empaneled, it becomes necessary for us to state more fully than we did in the original opinion the facts as to this matter.
Appellant contends that the original opinion overrules, in effect, the case of Early v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 873. That case shows the jurors talked with others over the `phone after they were empaneled, out of the presence, and without the permission, of the court. Article 728, Code Criminal Procedure, forbids this. This court in that case said it was contended that one of these two rules should apply: 1st, it will be absolutely presumed injury occurred to appellant, or 2d, the burden would be on the State to show injury could not have occurred. Then states that in McCampbell v. State, 37 Tex. Crim. 607, this court held that where *Page 216 jurors had separated and opportunity for them to be tampered with was shown, injury to appellant will be presumed. In further discussing the question in the Early case, Judge Henderson says: "Heretofore we have held with reference to the separation of the jurors, that those would be liable, if tampered with, to suppress the facts, and that therefore little reliance should be placed on their testimony, and the same rule would apply with reference to conversations. So that the necessity for the examinations of others than the jurors with whom such conversations occurred seems to be necessary." In that case not all of the jurors who talked were sworn and examined, and none of the parties they talked with were sworn or examined. So that case was reversed; the court said: "Therefore, we accordingly hold that the burden shifted to the State, was not discharged by it."
It is clear to us that the rule adopted and applied in the Early case was simply, that when the jurors are shown to have talked with others over the `phone, out of the presence, and without the consent, of the court, after they are empaneled, the burden is on the State to show that no injury occurred to appellant thereby. We adhere to that rule in this case, and the Early case is not overruled by this.
In empaneling juries it is universal for the attorneys to test each juror on his oath to learn if they know anything of the case, and if they have any bias or prejudice against the defendant. The object being to get fair and impartial jurors who know nothing of the case. We have no doubt that was done in this case by appellant's able and competent attorneys and that each juror in this case fully met all these requisites. There is no intimation in this record that a single one of these jurors was otherwise than fair and impartial and knew nothing of the case when empaneled. There is no reflection upon either of them, and no intimation or suggestion that they were tampered with, other than that they talked with outside parties over the `phone out of the presence, and without the permission, of the court. When such is the case, we do not assent to the implication that they will perjure themselves when testifying to whom they talked, and what was said over the `phone, as might be inferred by the language of Judge Henderson in the Early case, where he says "little reliance should be placed on their testimony." As shown by the discussion by Judge Henderson in that case, it is only when a juror permitted himself to be "tampered with," that little reliance should be placed on his testimony.
Now let us see whether the State discharged this burden. In acting on the motion for new trial, the court below heard the sworn testimony. It was clearly shown by the officer in charge of the jury and otherwise that eleven of the jurors thus talked once, some twice or more times. Some a short, others a longer, time. He knew they were talking, did not try to hear all they said, but did hear some of it. He heard some talking to their home-folks about home affairs. *Page 217 Did not know to whom they talked in each instance, nor what was said by the other party over the `phone. The jury was kept in a body while all this talking occurred. The officer thought this was the custom with juries. No outside party called up any juror. No intimation that any juror was tampered with is shown by his testimony.
M.A. Sullivan, foreman of the jury, testified. He talked to his wife twice. Told her he was tied up on this case and would not be home. He did not discuss this case with her or anyone else. He did not know of any of the jury who did discuss the case with anyone else. Mrs. Sullivan, wife of the foreman, fully corroborated him. J.W. Bailey, another juror, testified: He talked to Judge Munroe, the presiding judge, asking if the jury could go to a moving picture show. The judge told them to ring Taylor Gallagher, appellant's attorneys. He then called Mr. Taylor's residence and his son answered, and told him his father said it was all right. He also talked to his wife. He did not discuss this case with any of these parties. He was fully corroborated by Judge Munroe, and was told by the judge that so far as he was concerned they could go to the show if the jury would sit together, not separate, nor talk to anyone, and would get the permission of appellant's attorneys. He (Bailey) was also fully corroborated by Mr. Taylor, one of the attorneys for appellant, who gave his consent that they could go to the show, and also by Mr. Taylor's son. It seems Bailey's wife did not testify. W.W. Moore, another juror, testified: "I was a member of the jury that convicted Harry Parshall. I had some talks over the telephone; I talked with my wife and with my mother. I did not talk with anybody else. I did not discuss with them anything about this case. I did not have the permission of the court to talk. The deputy sheriff had a chance to hear my conversation; he was in the room with the balance of the jury; I said I wanted to talk, and he said go ahead. When I talked I rang `country line' and called for Robinson, and then called for my residence and my mother's residence. I called by name. I did not hear any of the jury discuss this case with anyone." W.A. Cox, another juror, testified: He was a barber, and talked with his mother-in-law and Mr. Stowe, one of the proprietors of the barber shop where he worked. He did not talk with either of these parties about this case. Stowe, the barber proprietor, testified: He fully corroborated Cox, stating Cox asked him to send $2 around to the Dumas House, and this case was not discussed. It seems Cox's mother-in-law did not testify. J.T. Duncan, another juror, testified: "I talked over the `phone; I talked twice. I talked to our next-door neighbor, Mrs. Scruggs. I did not discuss this case with her in any way. I did not talk to anybody else. I talked twice to her. I talked over the telephone twice. I rang them up myself; I rang by name." J.N. McBride, another juror, testified: He run a rooming-house. His wife was sick. He called up and talked twice *Page 218 each day to his chambermaid, a negro woman, asking about his wife, and asked about the affairs of his rooming-house. He did not discuss the case with anybody. Lula Miller, McBride's chambermaid, fully corroborated him. C.A. Sherman, another juror, testified: He called up Miss Allen, the stenographer of the Garrett Hardware Company, where he and she worked, and told her he was on the jury and could not be down. He did not discuss this case. He was fully corroborated by Miss Allen. G.W. Gorham, another juror, testified: He talked to Smith Bros., the feed men, about business. Neither discussed this case. Nothing at all was said about it. Smith, the feed man, fully corroborated him. This talk was about some feed Gorham had ordered. Nothing was said about this case. Cal Taylor, another juror, testified: He called Mrs. Cline, a neighbor, and asked her to tell his wife he was on the jury and would not be home. He did not mention this case to her. Mrs. Cline fully corroborated him. N.S. Alexander, another juror, testified: He talked to his wife twice. Neither said anything about this case. Mrs. Alexander, his wife, fully corroborated him. The first time he told her he could not be home that night, and the second time he could not get away and would be gone another night. Nothing was said about this case. J.S. England, another juror, testified: "I live out in the Riesel community. I was one of the jurors that tried the case of the State of Texas against Harry Parshall. I did not discuss the Harry Parshall case with anybody but members of the jury while I was on that jury. I talked over the telephone while I was on the jury. I think I talked to McClain's livery stable. I left my horse down there and I called them up to tell them about it; that is here in town. I called up there to arrange about leaving my horse. I also talked to Mrs. Kayser at Riesel. I did not talk to her about this case; I talked to her to ask her to send word to my wife that I could not come home that night. I did not have any other conversation over the telephone with anyone. I did not discuss with anybody except the jurors in the case any fact relative to the case which we were deliberating upon. I do not know who it was that I talked to at that livery stable. Really, it was a wagon yard and trading place that I wanted, and I think there is a livery stable the next door, the adjoining place, and I called for it at that place, the livery stable. Really, I think Mr. Buchanan did the talking; he is the deputy sheriff. I know he rang, and I would not be positive, but I rather think he did the talking. I was in the sheriff's office then. After thinking about it, I believe Mr. Buchanan called Mr. McClain, and then I talked to him." T.P. Reagan, the twelfth juror, testified: He did not talk over the `phone or otherwise to anyone about this case. John Walton, deputy sheriff, testified: Mrs. Delia, the juror Cox's mother-in-law, is in bed with nervous shock and hardly able to get around. Her house burned last night. Mrs. Moore, the juror Moore's wife, has gone fishing and was unable to be reached. His *Page 219 mother's husband is sick and not expected to live, and Morris' mother could not leave on that account. Mrs. J.W. Bailey is sick.
The return on the subpoena made by Mr. Tilley, sheriff, was introduced and is as follows: "Came to hand on this April 19, 1909, and executed on the same day by attaching Miss Allen, Mrs. Cline, Mrs. Walter Moore not found, gone fishing; Mrs. Moore sick, Mrs. Bailey sick, Mrs. Scruggs sick, Mrs. Delia sick."
Thus it is shown that all twelve of the jurors were sworn and testified fully on the hearing of the motion for new trial. All but one did some talking over the `phone. Eight of the eleven who did talk were corroborated fully by some or all persons to whom they talked. One England lived in the Riesel community. Why the persons to whom he talked were not sworn and examined does not appear. Another, Moore, lived at Robinson. It seems his mother and wife were attempted to be procured on this hearing, but could not be — one because of absence, the other because of sickness. The only other juror, who was not corroborated by having the person to whom he talked testify, was Duncan, and this was because the lady to whom he talked was sick and could not be had.
All of this testimony on the hearing of this motion bears intrinsic evidence that it was natural and reasonable and probable that their testimony is true and it drives conviction to the mind, beyond controversy, that it is true. It shows, without doubt, that the appellant was not in any way injured by any or all of these conversations over the `phone. So that we hold that the burden by the State to show that there was no injury to appellant was fully met by the State. Early v. State,103 S.W. 868; Speer v. State, 57 Tex.Crim. Rep..
We would not have it understood that we, for a moment, sanction such practice by jurors, but on the contrary we condemn it because this case is a fair sample of the unnecessary expense and delay and trouble to which the parties and the State are put to meet the issue when such conversations are held. We urge the trial courts to caution, and if need be compel the officers in charge of the jury and the jurors themselves to desist from any such misconduct.
7. A suggestion was made in oral argument, but it is not complained of in the motion for rehearing that the verdict of the jury did not convict appellant on count three of the indictment, and that it is not certain that the verdict of the jury is on that count at all.
On this point the verdict of the jury is clearly to the contrary of this suggestion. It is: "We, the jury, find the defendant guilty under count No. 3, as charged in the indictment and assess his punishment at two years confinement in the penitentiary. M.A. Sullivan, foreman." Count No. 3 of the indictment is one of the four specifically submitted to the jury by the charge of the court, and by the charge of the court it is clearly identified as No. 1 in his charge. In addition to this, in the brief of appellant's attorneys they *Page 220 say that "appellant was convicted of keeping a room for the purpose of being used as a place to gamble with cards," and this count in the indictment is the only one charging the defendant under the statute with that offense. So that, in our opinion, there is no doubt whatever that the verdict of the jury by its terms, in connection with the indictment and the charge of the court, fixes that the appellant was convicted; and the verdict of the jury was on the said count three in the indictment.
The motion for rehearing is overruled.
Overruled.
Harper, Judge, concurs.