This case has demanded the joint efforts of this court since its submission, and the voluminous record has been gone over carefully by a majority of the court. It was first reversed, with a dissent filed; upon the State's motion, the reversal was set aside and it was then affirmed, and it now appears on appellant's motion for a rehearing.
We have again gone over the record, and read with interest appellant's motion. We gather that appellant's first contention in such motion seems to be that because the statute denouncing the keeping or exhibiting of a policy game only denounces such an act upon the part of a person, that it means only natural persons; that it fails to denounce such acts upon the part of corporations, or artificial persons, and it therefore falls within the category of class legislation, and is void under the Fourteenth Amendment to the Federal Constitution because same discriminates in favor of corporations who might conduct a policy game.
We fail to follow him in his reasoning, which if carried to its ultimate conclusion would leave us without any method of punishment against the commission of the many felonies denounced by statute because of the fact that it would be impossible to confine a corporation in the penitentiary, or to punish same except by a pecuniary fine. We do not think the failure of Art. 619, P. C. to furnish a penalty against a corporation would amount to class legislation. In this instance we think that such a corporation is not of the same class as that denounced by Art. 619, P. C., and that therefore it could not be said that legislation that only punished natural persons was obnoxious because it failed to punish artificial persons for committing the same penal act.
Appellant complains because of the overruling of his motion to quash the indictment herein, the main ground thereof being because the indictment does not show in detail what constitutes a policy game, but merely uses those words in setting forth the herein charged offense.
In the case of Polk v. State, 154 S.W. 988, the indictment seems to be in the identical phraseology of the present indictment, and it was held to be sufficient, which holding is supported *Page 380 by a list of authorities therein set forth; also see Schwarz v. State, 124 S.W.2d 392; also McKissick v. State, 2 Tex. 356 [2 Tex. 356], in which latter case Justice Wheeler said in substance that a charge that appellant "bet at a certain gaming bank then and there exhibited and kept, called Monte" was sufficiently descriptive of the offense inhibited by statute. In Short v. State, 23 Tex. App. 312[23 Tex. Crim. 312], a charge for betting at a faro bank was held a sufficient allegation. Again, the Supreme Court held in Estes v. State, 10 Tex. 300, that a charge that accused bet at a gaming table at "rondo," that such charge was sufficient. We think the indictment was not subject to the motion to quash, but is in line with the authorities.
Appellant contends that the game shown by the evidence to have been operated was a lottery, and not a policy game. It is true, as mentioned by this court in the case of Canizares v. State, 157 S.W.2d 385, and in Schwartz v. State, 124 S.W.2d 392, that the winning numbers are usually decided by a drawing or lottery, but such is not a necessary method of ascertaining the winner. The lottery method might be used, or some other arbitrary method known possibly only to the keepers of the game, and the incidental mention by or idea of the policy "writers" would neither govern the class of game nor its name. "Policy" as used to designate a gambling game has achieved wide publicity and is known throughout the Union; a definition thereof is found in Vol. 22, Encyclopedia Americana, p. 303, as follows:
"Policy, the name given a lottery or gambling system; common in large cities. A combination of numbers like 4-11-44 is selected by the player who marks his numbers or 'guesses' on a slip or ticket, for which he pays a small sum. The lottery drawing of three numbers awards prizes to those persons having guessed correctly. A favorite or common combination of numbers is called a 'gig.' The person playing policy stands only a very small chance of winning a prize."
There is quite a difference in a lottery and a policy game; the lottery portion thereof, if used, is but an incident in determining what numbers appear, the identity of the numbers being the basis of the wager. We do not think the trial court was called upon to define a lottery to the jury in his charge. He did define a policy game, and we think that was sufficient.
Appellant now complains because of the fact that the search warrant herein is directed to the sheriff or any constable of Harris County, and he now says that same was executed by city *Page 381 policemen of Houston. There appears nothing in the record preserving such error, if such there was, and his objection thereto now comes too late.
We have carefully read the portion of the court's charge relative to principals, and think that it is not subject to the objections leveled at same by appellant. To have gone further and singled out what association between the Cagle brothers would be necessary before appellant would be guilty as a principal would have borne upon the weight of the evidence, and been subject to objection thereto.
Appellant also complains because in the original opinion we failed to write on his bill of exception No. 7 which complaint relates to the reproduction of the testimony of John W. Moore, given upon a first trial of this cause. It was shown that Mr. Moore, who worked for a bank in Houston, was not with such bank at the time of this trial; that on April 1, 1942, he advised by card the assistant district attorney that his address was "John W. Moore, Seaman, Company Y-Z, Coast Guard Training Station, Eighth Naval District, Algiers, New Orleans, La." This card's signature was proven by a brother of Mr. Moore, who exhibited an envelope mailed on October 20th from Wilmington, California, in the handwriting of John W. Moore to his wife, who was soon leaving to join him in California. Appellant's objection to the reproduction of this witness' testimony shows, among other things, that the witness was in the Armed Forces of the United States, and had not established any permanent residence, but was only temporarily absent from the State.
The decision in the case of Cline v. State, 36 Tex. Crim. 320, held that it was necessary that an accused be confronted with the actual presence of the witness against him in all trials, it not being sufficient that the accused had once been thus confronted in the identical case with such witness, who was at the succeeding trial either dead or beyond the jurisdiction of the court. This case was very controversial in this court, and a vigorous dissent was written by one of the judges, but the doctrine laid down therein continued to be the law until the decision in the case of Porch v. State,51 Tex. Crim. 7, 99 S.W. 1123. In that case a witness against Porch who was charged with hog theft had met his death shortly after such witness had testified in an examining trial as to such theft. This court then repudiated the decision laid down in the Cline case, and allowed the reproduction of the deceased's witness testimony *Page 382 given in the examining trial. Soon thereafter in the case of Kemper v. State, 63 Tex.Crim. R., 138 S.W. 1025, a special court overruled the Porch case, supra, and again returned to the doctrine set forth in the Cline case, supra. Again, in the case of Robertson v. State, 63 Tex.Crim. R., 142 S.W. 533, this court in an exhaustive opinion, citing decisions not only from the Mother Country under similar circumstances but also from many states of the Union, restored the holdings prior to the Cline case in this jurisprudence, and we now find the doctrine "declared to be that when the testimony of a witness has been taken in the course of a judicial proceeding and the accused had the opportunity to cross-examine him then, and the witness dies, or becomes insane, or moves beyond the jurisdiction of the courts of this State, or is kept away by the wrongful acts of the person accused of crime in a subsequent trial, the testimony of such a witness can be introduced in evidence." We are of the opinion that the rule just above set forth is now the settled law of this State.
It was shown that the witness whose testimony was reproduced was without the jurisdiction of the court; that he had previously testified in person on a former trial of this matter, and had there confronted the appellant, who had an opportunity to cross-examine him, and under such rule and such circumstances his testimony was reproduced. We think the State was within its rights when it reproduced the testimony given upon the former trial.
Relative to the matter complained of in bill of exceptions No. 8, the question relative to what was the result of the first trial was answered, and it showed a mistrial, — the witness answering before any objection thereto was made. Immediately after the answer was given, an objection was made, and the State's attorney withdrew the question, and the trial court promptly instructed the jury to disregard both question and answer, and that same should not be discussed or considered by the jury. Upon a retirement of the jury, appellant moved for a mistrial, after having objected and excepted to the answer of the witness. It is deduced from the bill that on the voir dire examination of each juror they were asked if they had heard or read of any previous trial and the result thereof, and no member thereof answered that he had heard of the result of the prior trial. It will thus be seen that the jury already knew of a former trial, and we do not think that the casual mention of a hung jury, prior to an objection thereto, and eliminated promtly as soon as objected to, should result in a mistrial hereof. *Page 383 If injury at all, it would seem to have been remedied by the careful trial court's prompt instruction.
In the original opinion wherein this cause was reversed many of the bills of exceptions were not discussed, nor was such discussion thought necessary to the final conclusion arrived at therein. However since this cause has taken the course in which it is now found, we have endeavored to discuss some of the matters presented in such bills. Again have we read the record and carefully considered all bills of exceptions, and we think the opinion of our Presiding Judge should settle this case, which granted the State's motion for a rehearing.
Therefore appellant's motion for a rehearing is overruled, thus leaving the judgment of the trial court affirmed, and it is so ordered.