dissenting.
If there be any provision in law whereby a club or corporation may engage in operating a pool hall, or a representative thereof may operate a pool hall for and in behalf of such club or corporation or its members, I know nothing of it. I confidently assert that there is no such law. In my opinion, the majority opinion in this case holds to the contrary.
A pool hall is a place where pool tables are used or exhibited for revenue, fees, or gain of any kind. If upon the pool table any money or thing of value is paid or exchanged, the place is a pool hall. Art. 4668, R.C.S.
It is unlawful for any person to operate a pool hall. Art. 653, P.C.
The appellant was in charge of the place, located on the second floor of a building in the city of El Paso, where there were exhibited four pool tables upon which the game of pool was being played at the time. No other person was in charge of or operating the place.
The sole reason assigned by appellant as negativing any supposition that the place was a pool hall was that it was a club, for members only, who paid $3.00 per year for the privilege of playing pool on the pool tables. The testimony showed that the club had one hundred members and that all those present at the time were members of the club.
To my mind, the charge of $3.00 annual dues for the privilege of playing pool in a building in the city of El Paso was a subterfuge, and the trial court had the right to so conclude. To my mind, it is preposterous to say that for $300 — which is $3.00 per member for one hundred members, and the total revenue derived by the club — the club could be operated and maintained for a year.
Such fact shows or at least authorized the trial court to find that other fees and revenue were received from the exhibition of the pool tables, and that, such being true, the place was a pool hall.
But whether the charge of $3.00 annual dues was or was not a subterfuge, the trial court was authorized, nevertheless, to say that such was the fee paid for playing pool, especially *298in view of there being no other facilities or club privileges provided. The fee could not have been for any other purpose.
In nay opinion, the cases of Vaiden v. State, (Civ. App.), 52 S.W. 2d 378, and McCombs v. State, (Civ. App.) 48 S.W. 2d 665, 667, directly support the trial court’s conclusion that the facts warranted the conviction.
If these cases are no longer to be followed, my brethren, who have here announced a contrary doctrine, should so state.
If pool halls are to be permitted to operate in this state, the legislature should repeal the existing law. Such is not the province of this court, but I am convinced that the majority opinion has that effect.
Being of the opinion that the facts are sufficient to support the conviction, I respectfully dissent to its reversal.