The conviction is for the offense of unlawfully keeping a building or room for the purpose of gambling in violation of Art. 625, V.A.P.C.; the punishment, two years in the penitentiary.
The evidence is undisputed that the building in question was a house owned by the appellant, which he and his wife occupied as their residence. The evidence is further undisputed that, on numerous occasions, during the years 1954 and 1955, people went to the place and gambled with dice in a room in the basement of the building, which could be entered by way of an outside entrance.
The testimony shows that, on the occasions when gambling was carried on in the room, free drinks were furnished by the appellant, as well as the dice and other paraphernalia used by the players.
Witnesses called by the state, who had gambled with dice at the place, testified that, in gambling, the players used chips, which, on occasions, were purchased from the person. running the game; that, on occasions, the appellant ran the game, sold and cashed the chips, and would pay off and receive payments for bets. The witnesses further testified that about half of the time the players would play and shoot against each other and the other half of the time the players would shoot againstz the house.
Appellant did .not" testify, but, by his examination of the witnesses, attempted to show that the room was not maintained as a place to bet and wager with dice, but that the games played were only incidental and merely friendly games between the participants therein..
The jury chose to accept the state’s theory that the room was kept by the appellant for the purpose of gambling and to reject his contention that-it was not, and we find the evidence sufficient to support -its verdict.
We shall discuss the appellant’s contentions in the order in which they are presented in his brief and oral argument.
*598Appellant first complains of certain jury argument made by state’s counsel. Such is presented by Bills of Exception Nos. 7 to 18, which reflect that, in nine instances, the court sustained appellant’s objection to the argument complained of and instructed the jury to disregard the same, and, in the other three instances, overruled appellant’s objection thereto.
Bills of Exception Nos. 9, 10, and 16 present the argument to which appellant’s objection was overruled.
Bill of Exception No. 9 complains of the district attorney’s statement that he didn’t know whether “you presented a little card saying ‘Sporting News’ on it” in his argument relative to whether appellant’s place was open to the public and how entry was made. We find no error in the argument as there were introduced in evidence several calling cards found in the search of appellant’s home, which cards contained the appellant’s name and the words “Sporting News” printed immediately thereunder.
Bill of Exception No. 10 presents appellant’s objection to the district attorney’s statement: “I could have paraded lots of witnesses probably forty or fifty out there, according to this boy one night when they were playing craps,” on the ground that such statement constituted testimony being given by the district attorney. We find no error in the bill. The statement appears to be a reasonable deduction from the testimony of the state’s witness Lyday, wherein he testified that, on one occasion, “there were twenty-five, thirty or forty” people at the appellant’s place when a dice game was in progress. The district attorney made no effort to state what the witnesses would testify.
Bill of Exception No. 16 relates to argument of the district attorney, which, he specifically stated, was directed to other gamblers in the county in urging the jury, by their verdict, to tell them that similar gambling activities would not be permitted. We perceive no injury to appellant by reason of such argument.
We have considered the argument complained Of in the remaining bills, in the light of the court’s action in sustaining appellant’s objections thereto, instructing the jury not to consider the same,' and the minimum punishment assessed, and are of the opinion that no reversible error is shown.
*599Appellant next complains of the court’s charge.
It is first insisted that the court erred in failing to charge on circumstantial evidence. There being direct evidence that the appellant kept the room for gambling purposes, as charged in the indictment, no error is shown in the court’s refusal to instruct the jury on the law of circumstantial evidence. McFaddin v. State, 119 Texas Cr. Rep. 134, 46 S.W. 2d 307.
Appellant next insists that the court erred in refusing to give his requested charges Nos. 1, 3 and 4, which would have authorized the jury to find him guilty of certain lesser misdemeanor offenses, under Articles 618, 624 and 628, V.A.P.C., of gambling or permitting gambling in his home. Art. 694, V.A. C.C.P., authorizes a conviction of a lesser offense where the prosecution is for an offense which includes it. Art. 695, V.A. C.C.P., enumerates certain offenses which are declared to include certain degrees, but does not enumerate the offenses of keeping a building or room for the purpose of gambling.
The rule has been stated that, where the offense charged is not within the provisions of Art. 695, supra, in order to warrant a conviction for a lesser offense than that charged in the indictment, it is necessary that every constituent element of the lesser offense be alleged in the indictment, and that there be no repugnancy between the elements of the lesser offense and those of the offense charged. Tomlin v. State, 155 Texas Cr. Rep. 207, 233 S.W. 2d 303.
In applying the rule to the indictment in the present case, we find 'that it does not allege all of the essential elements of the lesser offenses under Articles 618, 624 and 628, supra. The indictment does not allege that the appellant gambled in any manner, which is an essential element of the offenses under Articles 618 and 624, supra. Nor did the indictment allege that appellant permitted gambling in his house or upon his premises, the same being a public place, which is an essential element of the offense prescribed in Article 628, supra. Appellant’s contention is overruled.
Appellant insists that reversible error is shown because of the admission in evidence of certain articles and paraphernalia identified as having been found in his home by officers acting under a search warrant, over the objection that there was no evidence that such articles were used for the purposes of gambling on his premises, as charged in the indictment.
*600The articles consisted of a green cloth, a poker chip, deck of cards, a white jacket, carrying case, calling cards, note pads, and a telephone directory; and the court, in his charge, instructed the jury, after enumerating the articles, that they could not consider them as any evidence of appellant’s guilt unless they found beyond a reasonable doubt that such articles were used for the purpose of gambling with dice, as charged in the indictment.
Articles and paraphernalia used' in the commission of the offense of keeping a building or room for the purpose of being used for gambling are admissible in evidence. Cagle v. State, 147 Texas Cr. Rep. 354, 180 S.W. 2d 928.
Under the court’s instruction to the jury not to consider the articles as evidence of guilt unless they believed beyond a reasonable doubt that they were used for the purpose of gambling as charged, we fail to perceive any injury to appellant by reason of the admission of such articles in evidence.
Appellant next insists that the court erred in overruling his motion for new trial because of jury misconduct. It was alleged in the motion, supported by affidavit of the juror Crow, that, during the jury’s deliberation before they reached a verdict of guilty, one of the jurors stated to the other jurors that, in the event they should find appellant guilty and assess his punishment in the penitentiary for two years, “he would be required to serve only about six months,” and that, as a result of such erroneous statement of the law, at least one of the jurors changed his vote from not guilty to guilty and agreed to find appellant guilty and to assess his punishment at two years in the penitentiary and not to recommend a suspended sentence.
Upon the hearing of the motion, three of the jurors were called to testify.
Juror Crow, upon being called by the appellant, testified that the statement was made during the jury’s deliberation on the question of suspension of sentence, and that he thereafter changed his vote from suspension of sentence to that of against a suspension of sentence.
Juror Klein, being called by the appellant, testified in substance that the statement was made.
Juror Blaha, being called as a witness by the state, testified *601that the statement was not made but that the jury did discuss the question of parole and time allowed for good behavior.
The decision on the motion for new trial rested within the sound discretion of the trial court; and, in the absence of an abuse of discretion, this court would not be justified in reversing the judgment. Shepherd v. State, 111 Texas Cr. Rep. 4, 10 S.W. 2d 730; Kilpatrick v. State, 155 Texas Cr. Rep. 609, 237 S.W. 2d 996; and Berry v. State, 159 Texas Cr. Rep. 492, 265 S.W. 2d 86. Under the conflicting testimony relative to whether the statement was made as alleged, we are of the opinion that the court did not abuse his discretion in overruling the motion.
The mention of parole and credit for good behavior during the jury’s deliberation on the question of punishment did not constitute such misconduct as to demand a new trial. Walker v. State, 150 Texas Cr. Rep. 421, 201 S.W. 2d 823.
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court.