dissenting.
Art. 625, P.C. makes it a felony to keep a gambling house. It reads as follows:
“Keeping. — If any person 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 or dominoes, or to keep or to 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, he shall be confined 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. Any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting.”
The prosecution arose under that article, the indictment charging that appellant did unlawfully “keep and was then and there interested in keeping a certain room, place and building there situate for the purpose of being used as a place to bet and wager and to gamble with dice then and there played; and as a place where people did then and there resort to gamble, bet and wager on games played with dice * *
In order to convict one of a violation of Art. 625, P.C., it is necessary, absolutely, that it be shown that the accused was in some manner connected with the premises, building, room, or place in which the gaming occurred. Lewis v. State, 136 Tex. Cr. R. 105, 124 S.W. 2d 121; Ardovina v. State, 143 Tex. Cr. R. 43, 156 S.W. 2d 983.
The examination of the evidence in the light of the above rule of law reflects the following:
On two occasions, i. e., October 12 and October 15, 1954, Harrison, a policeman of the city of Dallas and acting as an undercover man for the Special Service Bureau of that city, went to a house known as “Bryan Street Nite Spot” — a cafe and beer tavern — in the city of Dallas. On each occasion he found and participated in a dice game in the house. Appellant was *108present, and his connection with the game was that of “sack man.” The duties of the sack man were stated by the policeman as follows:
“Well, the sack man took a cut. He took 10 cents cut off all bets 60 cents or less, and all bets above 60 cents, he took 20 cents off, and made change in the game for the players, and kept the game going along without any arguing and so forth. He settled all disputes they had.”
Such testimony was ample and sufficient to show that the appellant was directly connected with the operation of the dice game.
There is not a line of testimony in this case to the effect that the appellant had any connection with the premises, the building, the room, or the place where the game was operated. To the contrary, the uncontradicted testimony shows that the place was owned and operated by others, viz., the Clark brothers. Indeed, the license to sell beer in that place was issued in the name of and to one of those brothers.
Unless and until the state showed appellant had some connection with the keeping of the place for the purpose of gaming, he was not guilty as charged.
Whether appellant was shown to be guilty of a violation of Art. 619, P.C., which makes it a felony for one to keep or to exhibit a gaming table for the purpose of gaming, is a question that is not before us. The state did not charge appellant with that offense.
The fact remains that proof of his connection with and his exhibition of the dice game and his taking of fees from others as a privilege to bet thereon do not show that he was the keeper of the house or place for the purpose of gaming, especially when the uncontradicted proof shows that others were the keepers thereof.
If one should be convicted under Art. 619, P.C., for keeping and exhibiting a dice game and table for the purpose of gaming and the facts showed only that he was the keeper and exhibitor thereof, I cannot help but wonder how my bretheren would dispose of the contention there that such facts do not show a violation of Art. 619, P.C., but do show a violation of Art. 625, P.C., prohibiting the keeping of a house or place for the purpose *109of gaining, and, in support of that contention, cite their opinion in this case, which so holds.
In order that such confusion might not exist under our decisions, I respectfully enter my dissent.