The State has filed a vigorous motion for rehearing contending that we erred in our original opinion in holding that if appellant had offended against any law it was not that defined by Article 625 of the Penal Code. In Dolan v. Walker,121 Tex. 361, 49 S.W.2d 695, 697, the Supreme Court of this State has restated a long accepted principle, *Page 642 as follows: "The paramount rule in construing statutes is to ascertain and give effect to the intention of the Legislature." This rule seems peculiarly applicable where it is questionable whether certain acts complained of come within the denunciation of a criminal statute.
In an effort to arrive at the intention of the Legislature as expressed in said article 625, it is necessary to consider in connection therewith articles 626, 627, 647, 648, 649, 650, and 651 of the Penal Code, and also the history of the legislation reflected by said enactments.
As passed by the 30th Legislature (Acts 1907, p. 108) the article which is now 625 did not appear in its present form. It was enacted as article 388b, and was carried forward in the 1911 revision of the Penal Code as article 559, and read as follows, both in the original act and in said revision. "If any person shall rent to another or shall keep or be in any manner interested in keeping, any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever or shall knowingly permit property or premises of which he is owner, or which is under his control to be so used, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not, and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."
It will be noted that the "renting" of premises for the purposes mentioned in said article, or "permitting the use" of premises for such purposes was included in the same article, but by the revision of 1925, old article 559 was "split up" and the "renting of premises" now appears as article 626 and "permitting the use" of premises appears now as article 627. In 1903 (Act of the 28th Legislature, c. 50, p. 68) it was made a misdemeanor to engage in, or assist in selling or buying pools or bookmaking or betting on horse races; likewise it was made a misdemeanor for an owner or a lessee to permit his premises "to be used as a place" for selling pools, bookmaking *Page 643 or betting on horse races. In 1905 (Act of the 29th Legislature, c. 165, p. 398), the Act of the 28th Legislature was amended, and it was expressly provided that pool selling, bookmaking and betting on horse races and permitting premises to be used for such purposes, were not offenses if they occurred "on the day and within the enclosure where such race" was run. Such was the status of the law when what are now articles 625, 626, and 627 were enacted in 1907. Yet, the Legislature, with knowledge that the act of 1905 expressly permitted the things mentioned and which the State now seeks to bring under present article 625, enacted said law without any reference to the act of 1905. It seems to follow that the Legislature had no intention at the time to include under articles 625, 626, and 627 the selling of pools, bookmaking, betting on horse races, or permitting premises to be used for such purpose. If, as contended by the State, such acts were intended to be included in the denunciation of said articles, it seems strange and unreasonable that the Legislature would have entirely ignored their act of two years before, and say, in effect, that we now propose to send one to the penitentiary for doing things which we expressly said two years ago were not offenses of any character, without any mention of said former permissive act. In 1909 (Acts 31st Legislature, c. 45, p. 90) the Legislature again dealt with horse racing, betting and selling pools thereon, bookmaking and permitting premises to be used for such purpose. The Act of the Twenty-Ninth Legislature in regard to such matters was expressly repealed and there was enacted in lieu thereof what is now found in the revision of the Penal Code of 1925 as articles 647, 648, 649, 650, and 651. Once again the Legislature entirely ignored articles 625, 626, and 627, as having any relation to the subject of horse racing or the things heretofore mentioned in connection therewith. The offenses defined in articles 647 to 651, inclusive, were made misdemeanors and the punishment prescribed was by fine, or by fine and imprisonment in jail. By construction, the State seeks to bring the acts which appellant is alleged to have committed under article 625 by the language "or as a place where people resort to gamble, bet or wager upon anything whatever." In determining whether the Legislature ever intended any such construction, it is pertinent to take note of the following fact: By the language of the law as originally enacted in 1907, and as now embraced in articles 625 and 627, any one who knowingly permits property or premises of which *Page 644 he is owner, or which is under his control, to be used for any purpose mentioned in article 625 is guilty of a felony carrying a punishment of not less than two nor more than four years in the penitentiary. If article 625 and 627 be construed as the State contends, then the owner or any one controlling property or premises who permits it to be used as a place to bet and gamble on a horse race, or to sell pools or make books thereon, would be guilty of a felony; yet, under such construction, we find the Legislature doing the futile and foolish thing of enacting a law in 1909 (article 649, P. C.), which provides as follows: "No owner, agent or lessee of any property in this State shall permit the same to be used as a place for selling pools or bookmaking or wagering or receiving or assisting any person in placing any bet or in receiving or transmitting any offer to bet anything of value on any horse race to be run, trotted or paced at any place in this State or elsewhere." A penalty for the violation thereof is fixed at a fine and imprisonment in jail. Thus, by the State's contention, the same act in one instance is denounced as a felony and in another as a misdemeanor, with different penalties, thereby rendering both legislative acts nugatory and unenforceable. We mention this as another reason for concluding that the Legislature never intended that the acts which are charged against appellant should be covered by article 625.
As further tending to demonstrate that the Legislature had no intention to include under article 625 the acts charged against appellant, we note that in 1933 (Acts 43d Legislature, 1933, p. 428, c. 166, as amended First C. S., 43d Leg., 1933, p. 32, c. 10, a law was passed permitting horse racing and betting thereon under what was called the "certificate system," permitting one holding a license provided for in said act to collect and receive contributions of money from any person present at such race for the purposes enumerated in said act. The Legislature having in mind the articles of the Penal Code relative to horse racing, and fearful of an attempted enforcement thereof, provided as follows: "The said certificate system as herein authorized shall not be construed to be either pool selling, betting or bookmaking within the meaning of Articles 645, 647 and 648 of the Penal Code of the State of Texas, Title 2, Chapter 6, according to the 1925 revision." Vernon's Ann. P. C., art. 655a, subsec. 2. Again, the Legislature ignored entirely and made no reference to article 625. This would seem to indicate that it had no *Page 645 apprehension that an effort might be made to bring under said article the things authorized by the act of 1933, which apprehension did exist as to the articles mentioned.
The Attorney General of this State has filed a brief in the present case. If we do not misapprehend it, he does not differ from us in the conclusion reached in our original opinion, but questions whether in applying the rule of "ejusdem generis" in construing article 625 the restriction placed thereon is not greater than was necessary or proper. The rule was employed in attempting to ascertain the legislative intent with regard to the particular offense charged against appellant. Construing said article in connection with the other legislation which has been referred to, we think proper application was made of the rule. If the offense of keeping a place for the purpose of betting on a horse race, bookmaking and pool selling thereon were of the same character as the things mentioned in article 625, then we would agree with the Attorney General that the rule of "ejusdem generis" need not be invoked; but there is such great difference in the character of the games and gambling devices mentioned in article 625 and horse races, bookmaking, and pool selling that in order to sustain the State's contention this court would, in our opinion, be by judicial construction reading into the statutes that which the Legislature did not see proper to include therein.
Having reached the conclusion that the original disposition made of this case is correct, the motion for rehearing is in all things overruled.