(dissenting).
Believing that the trial court was correct in ordering the destruction of the seven slot machines in question, and in ordering confiscation of the money found therein, I respectfully enter my dissent.
To begin with, I think it is clear that the room in which the machines were situated constituted a part of the premises occupied by the Town Club. The sheriff testified that he executed the search warrant at the Town Club. Mr. Hopson, the representative of the State Comptroller who collected the license fees on the machines, testified that he went to the Town Club on the occasion in question. Appellant in his *728■brief states that the machines were seized in the Town Club. There is no testimony to the contrary, and no contention has been made by either party that the room was not a part of the Town Club quarters.
On the morning of January 29, 1943, Mr. Hopson went with appellant Gray to the Town Club, checked the serial numbers on ■the machines, received a check for $360 from Gray in payment of the license fees on the machines, and gave Gray a receipt therefor. This occurred just before noon. When. Hopson and Gray arrived at the Town Club, the room containing the slot machines was locked. The evidence does not disclose whether the room was locked when they left. The evidence does show, however, that the room was unlocked when Mrs. Newlin went in to play the machines about three o’clock that afternoon. It is held in the majority opinion that the trial court did not admit in evidence the statement made by Gray that he was going to open up the machines the following night at the President’s Birthday Ball, and I, too, incline to the view that the record before us shows that Gray’s statement was not admitted in evidence, but appears in the statement of facts only by way of completion of a bill of exceptions. No complaint is made here of the exclusion of such statement.
The trial court found that the machines were being exhibited for the purpose of obtaining bettors at the time of their seizure. In testing this finding, we must consider only the evidence which tends to support it, and not that to the contrary. The evidence supporting such finding is that Gray was the owner of the machines; he carried a key to the room in which they were located and evidently had the right of access to the room; the machines were filled with money (there is evidence that it took $400 to fill the “jackpots”) ; Gray had paid a substantial sum, $360, for the license fees; the room was locked before the license fees were paid, but was found unlocked a few hours later; the machines were lined up against the wall, facing toward the center of the room; the room was small, but was large enough for a person to stand in front of each machine in order to play it; when the deputy sheriff arrived a woman was found playing the machines, coins fell out of it in the presence of the officer, and the woman, testified that she won $15 on that occasion; Mrs. Newlin testified that she had played the machines once or twice before, and further testified that she had also seen them in the bar room; and she was obviously evasive when questioned about seeing other people playing the machines upon other occasions. Under the testimony referred to, the trial court could hardly have found otherwise than he did. The machines were installed in the Club, the license fees had been paid, they had money in them, the room was unlocked, and they were in actual operation.
Let us see if the testimony to the contrary is of such nature as to overcome that which has been referred to. The owner of the machines did not testify, nor did he place anyone on the stand to explain the actual operation of the machines, other than Mrs. Newlin. The substance of her testimony, and I am unable to make more out of it, is that she wanted to play the machines that morning, and asked Mr. Hyatt, one of the operators of the Town Club, if she might do so. Mr. Hyatt told her that the room was locked, and no one was permitted to go in. She was asked if she was in the room with the knowledge and consent of Mr. Hyatt, or Mr. Featherstone, the other operator of the Club, or Mr. Gray, and replied in the negative. But when she went to the door of the room in the afternoon, after the license fees had been paid, she found it unlocked, she found the machines in readiness to be played, and she played them. The trial court could have readily inferred that the room was locked until the license fees were paid, and that then it was left open for the- convenience and pleasure of those who might wish to play the machines.
Appellant Gray was the one person best able to explain the circumstances, which, to put it mildly, tended to show that his machines were being exhibited for the purpose of obtaining bettors. His failure to testify, under such conditions, raises a presumption against him. 17 Tex.Jur. 302-309.
Nor am I able to see that his position would be improved by showing that he had stated that he intended to open up the machines the following night. Under the circumstances described, even giving effect to-such a declaration, he was keeping the machines for the purpose of obtaining bettors, had completed all of his arrangements, and had declared his purpose to exhibit the machines. Also, the trial court may not have believed Gray’s statement insofar as-it amounted, if it did, to a declaration that he did not intend to open up the machines until the following night, especially in view-*729of Gray’s failure to take the witness stand. Then, too, the court had before him, Mrs. Newlin’s testimony that she had played the machines before, and that she had seen them in the bar room.
I agree whole-heartedly with the finding of the trial court that the seven slot machines “are slot machines and gaming devices per se”. It might be that a slot machine of this type could be used in such manner that it would not be a gambling device, but these seven machines had no such character of innocence. Appellant relies heavily upon Hightower v. State, Tex.Civ.App., 156 S.W.2d 327, in which it is said that a slot machine is not per se a gambling device. But it is also said there that the use to which it is put must determine its character. Appellant also relies upon Callison v. State, Tex.Civ.App., 146 S.W.2d 468, but there it is said that a gaming device is not subject to confiscation unless it be shown that the device is being used or exhibited in such manner as to signify the purpose of gaming. A dismantled slot machine might properly be treated as mere junk iron, and in no sense whatever a gambling device, but not so when it is set up for operation, with the license tax paid, full of money, and actually being played by one desiring to bet money. Nor do I see that it would be controlling that a machine be idle, for lack of customers, at the precise moment the officer might arrive with the search warrant. There was testimony from Mrs. Newlin that she had played these machines before, and that she had seen them in the bar room. Her testimony in this respect is none too clear, but neither is some of her other testimony.
The statutes, save for an amendment which is not material on this appeal, are part of a statute passed in 1907. The act evidences a clear purpose on the part of the Legislature to prohibit gambling and to provide for the condemnation of certain types of equipment used in connection therewith. I am unable to find from the language of the act a qualification that the property can be condemned only if it comes from an establishment which is devoted wholly or for the main part to gambling. It is my sincere belief that the purpose of the statute is to provide for the condemnation bf gambling devices, whether they be found in grocery stores, drug stores, restaurants, or in what might commonly be called gambling houses, where the devices are being kept or exhibited for the purpose of obtaining bettors. And if it be necessary to restrict condemnation proceedings to devices found in gaming houses, then it is my opinion that any court would be warranted in viewing as a gaming house, for the purposes of such condemnation proceedings, the immediate area occupied by a slot machine in operation. According to Art. 631 of the Penal Code, a gambling or gaming house is any place where people resort for the purpose of gaming, betting or wagering. If the presence of the seven slot machines in the small room of the Town Club should have the effect doubtless hoped for by their owner and justified by the amount of money he had expended in preparation, it could reasonably be inferred that people would resort there for the purpose of gambling upon the machines.
It appears that the decisions of the courts in such cases have for the most part turned, not upon whether the machines came from what might be commonly known as gambling houses, but upon whether the machines were gambling devices, either by reason of their use or by reason of their nature. In addition to the cases cited in the majority opinion, see Prendergast v. State, 41 Tex.Cr.R. 358, 57 S.W. 850; Berry v. State, 106 Tex.Cr.R. 657, 294 S.W. 216; Mills v. Browning, Tex.Civ.App., 59 S.W.2d 219; Carpenter v. State, Tex.Civ.App., 89 S.W.2d 852; Houghton v. Fox, Tex.Civ.App., 93 S.W.2d 781; State v. Langford, Tex.Civ.App., 144 S.W.2d 448; Roberts v. Gossett, Tex.Civ.App., 88 S.W.2d 507; Speed v. Keys, Tex.Civ.App., 110 S.W.2d 1245.
I believe that the judgment of the trial court has support in the evidence and the inferences which can be reasonably drawn therefrom.