The Thirtieth Legislature in 1907 amended and rewrote Article 388 P.C. and added Arts. 388a-b-c-d, etc. The amended Article 388 forbade betting or wagering at certain named and described games under misdemeanor pains and penalties and contained the following proviso:
"No person shall be indicted under this section for playing said games with dominoes or cards at a private residence occupied by a family, unless same is commonly resorted to for the purpose of gaming." The terms of this proviso restrict its effect to the section containing it.
Article 388-b of said enactment, now Article 559 of our present Penal Code, made felonious the act of renting to another, keeping or being interested in keeping, any premises "for the purpose of being used as a place to bet or wager or to gamble with cards, dice or dominoes, etc. . . . regardless of whether the games mentioned are licensed by law or not," and said statute specifically states as follows: "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 same is resorted to for the purpose of gaming or betting." Appellant's conviction herein is under the last named article. In his motion for rehearing appellant insists that the indictment charging him with keeping and being interested in keeping a certain room and premises as a place to be used for the purpose of gaming, etc., is fatally defective because it fails to negative the fact that said room, premises, etc., was a private residence occupied by a family, basing this contention on the proposition that betting at cards is not unlawful under Article 557 when same takes place at a private residence, unless it be a residence commonly resorted to for the purpose of gaming.
That an indictment for betting at a game with cards under Article 557 needs to state that such game was not at a private residence, — was denied by Judge Ramsey in Purvis v. State,52 Tex. Crim. 343, and in Singleton v. State, 53 Tex. Crim. 625, and approved by Judge Davidson in Vinson v. State, 124 S.W. Rep., 652. We are aware of the fact that later this rule seems changed under a different personnel of the court in Purvis v. State, 62 Tex.Crim. Rep.; Chapman v. State,63 Tex. Crim. 513; George v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 621; Shelton v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 340. We do not quite see how this fact affects the question now before us. Appellant cites no authority holding that an indictment under Article 559 should contain the negative provision contended *Page 413 for and this court knows of no such authority. Even if the Legislature saw fit, in enacting the misdemeanor statute (Art. 557) penalizing the mere bettor or wagerer at certain games, to engraft a proviso exempting from prosecution those who so bet at such games when played at a private residence occupied by a family, this would afford no justification or excuse to this court for now in substance engrafting such proviso on a different statute, a felony statute (Art. 559) penalizing those who prepare for and carry on gambling as a business. For illustration: Suppose the accused should fit up his private residence in which he dwelt with his family with card tables, cards and other gambling paraphernalia and admit that his purpose in so doing was that it should be used as a place for gaming, — for people to bet and wager at cards. Upon what reasonable hypothesis could an indictment charging him with so doing, be held bad because it failed to negative the fact that such premises so fitted up and so kept were a private residence? We do not think it necessary that the indictment state that such was not a private residence. Each of the authorities cited by appellant and many others have been examined in this connection. We think the Sanchez case,90 Tex. Crim. 156 and cases cited in the original opinion announce the correct holdings. This being the only point raised in appellant's motion for rehearing, and being unable to agree therewith, the motion will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING. January 23, 1924.