Appellant was indicted under article 388b, as enacted by the Thirtieth Legislature, p. 108, for keeping and being concerned in keeping and interested in keeping certain premises *Page 327 and a certain building and house, and a room in the same for the purpose of gaming, and being used as a place to bet and wager and gamble with cards, and with dice, and with dominoes, and the same was then and there used as a place to bet and wager and gamble with cards and with dice and with dominoes, and as a place of resort to bet and wager and gamble with dice, and with cards and with dominoes; and further, that people did then and there resort to said premises and building and room for the purpose of betting and wagering and gambling with dice and with cards and with dominoes, etc. The State's evidence makes it clear that appellant's house was resorted to for the purpose of gaming, and that crowds resorted there for that purpose, and a great many games of dice and cards were played and betting was carried on rather extensively. An officer testified that he raided the place twice and found a crowd each time, arrested several on each occasion, and that more escaped than were arrested. Another witness testified on two occasions she was at said house and saw gambling. Appellant's testimony is directly to the contrary. She introduced evidence also to the effect if gambling was carried on she did not know it. This made the issue sharp. The house was her private residence.
It is insisted that the court erred in the charge given, and in refusal to give certain requested instructions. The court's charge is as follows: "If the jury should believe beyond a reasonable doubt that defendant rented one or more rooms of a house, situated in said Bowie County, Texas, and that by reason of such rental contract defendant had control and possession of said room or rooms, and that she, on or about the 22d day of March, 1909, unlawfully and wilfully and knowingly permitted said room or rooms to be used for the purpose of betting or wagering with cards, or dice, then you will find her guilty." The court further charged that said room or rooms shall be considered as used for the purpose of betting or wagering with cards, or dice, 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. Appellant asked the court to instruct the jury that, before they could convict, they must believe beyond a reasonable doubt that appellant kept the house for the purpose of gaming or knowingly permitted her house to be used for such purpose, and further, that mere gaming would not constitute her guilt, but they must believe beyond a reasonable doubt from the evidence that the house was commonly resorted to for the purpose of gaming, and if they should not so believe, or if there was a reasonable doubt of such fact, they should acquit. Without repeating the charges refused, they fairly presented appellant's side of the case. We are of opinion that these contentions are well taken. This was appellant's private residence, and her testimony is to the effect that people did not play there, nor resort there for the purpose of playing. This is substantially her side of the case, and it should have been so charged to the jury. The court did not present this matter to the jury, but presented the State's case. Unless people resort to the place for the purpose *Page 328 of gambling and betting, and engaging in such games after resorting there, with her knowledge and consent, it would not come within the inhibition of the statute. Her evidence raised this question, and because the special instruction was not given the judgment will be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.