It is argued with much force in support of this motion that the evidence adduced failed to establish sufficiently the fact that appellant was either the keeper or one interested in the keeping of a building or room kept for the purpose of being used as a place to gamble with cards. We have again carefully gone through the facts, the result being that we are more thoroughly convinced of the correctness of our decision in upholding the verdict upon the testimony. It was in testimony beyond dispute apparently, that *Page 649 the room in question was used as a place where people should meet and gamble. One witness testified that he gambled there almost constantly during one entire season, and that the game was being run for the profit of some person who had the take-off of every game. This witness testified that from every pot formed there was a chip taken out, evidently for the benefit of those who kept or were interested in keeping said place. He testified that either appellant or one other person whom he said was McGrew, took out that which was for the benefit of the house. When appellant was present he took it out and when he was not present McGrew took it out. This witness said that when McGrew relieved appellant or appellant relieved McGrew, that the one coming into the game would take the hand of the other and play it out. It was in testimony that appellant carried the key to said room, and when he was conducting the game or when the game broke up, that he would lock up the room. His constant presence during the time charged in the indictment, his undeniable interest in the profits of the gaming transaction, his interest in the business being carried on in the front part of the house, his apparent control of the room in which the gambling was done, which was merely a small room cut off by a partition from the cold drink stand and confectionary carried on and run in the front part of the building, would seem to us to sufficiently make out the State's case. The fact that the appellant and his witnesses denied the facts testified to by the State witnesses and that their evidence if believed would bring the State's case in doubt, would not justify us in concluding that the evidence introduced by the State was insufficient or untrue.
We adhere to our conclusion that Article 559 of the Penal Code was not repealed by the Statute making a vagrant of one who keeps a house for gaming. We do not think there is anything in the case of Ex parte Oats, 91 Tex.Crim. Rep., 238 S.W. Rep., 930, or Fridge v. State, 90 Tex.Crim. Rep., 233 S.W. Rep., 979, which supports the proposition advanced by appellant in this regard.
Appellant again urges that we should have sustained his objection to the testimony of the witness Letz. Reference to the bill of exceptions shows that the question propounded to said witness was as follows: "It is charged here in the indictment, Mr. Letz, that Mr. Harvey kept and was interested in keeping a building and room where people resort for the purpose of gambling. Did you ever gamble back there — play cards in Mr. Harvey's place?" The objection stated in said bill was that there was no testimony that Mr. Harvey had any place and that witness should not be permitted to testify relative to gambling anywhere until the State had connected the defendant with the ownership or right of possession to the building or room referred to in the indictment. The objection being overruled witness answered: "Mr. Harvey was running a confectionary. *Page 650 I understood that was his place. I saw him in there frequently. Yes, there was a separate room set off in one corner in the back room of this building where people went to play cards. Sometimes we would have a game in there. Yes, I have played in there sometimes. Sometimes when he was playing in there he would bank the game and sometimes a fellow by the name of McGrew would bank it. When I say `he' I mean the defendant Harvey." There is other testimony set out in this bill of exceptions. The bill of exceptions fails to measure up to the rules in such cases announced by this court frequently. A statement in the bill of an objection for a certain reason, is not tantamount to a showing of the fact that such statement is true. A statement of an objection based on the fact that there was no testimony before the court showing that this appellant had any place, or was the owner or had some interest in the room described in the indictment, would not be tantamount to a showing in the bill of the fact that such statement was true, and would not be taken by this court to be true because of the fact of its appearing in such objection. There is nothing in the bill of exceptions in question further reflecting the fact that there was not abundant testimony before the court to show that appellant owned the room in question.
Our review of the record confirms us in our belief of the correctness of the original disposition of this case, and the motion for rehearing will be accordingly overruled.
Overruled.