1. Appellant was indicted in the District Court of Potter County, charged in one count with unlawfully keeping and exhibiting for the purpose of gaming, a gaming table; in the other count the charge was that he kept and was interested in keeping a certain place, premises and room as a place in which to bet and gamble, and a place in which people then and there resorted to gamble. The court only submitted to the jury the first count in the indictment. Therefore, there was no error in overruling the motion for a continuance, as it was stated in the application that it was expected to be proven by the witnesses that one Will Dean had the premises leased, and the place was under his control. That may have been true and yet it would not have proven that defendant did not keep and exhibit a table for gaming on said premises. In addition to this, the whereabouts of the witness Dean was unknown, and under the evidence in this case he could hardly have been expected to testify to the facts it is stated it was expected to have been proven; at least, he could not have been required to so testify, for such testimony, under the evidence, would have made him guilty of a felony.
2. The contention of appellant that the court erred in permitting the State to ask a witness if he was not under indictment charged with keeping a disorderly house, can not be sustained. A disorderly house as defined by Article 496 of the Penal Code certainly would render one adjudged guilty of such offense, guilty of an offense involving moral turpitude. For a citation of authorities see Vol. 5, Words Phrases, 4580.
3. Appellant also contends that as the gaming took place on a billiard or pool table, it is not such a table as is contemplated by the statute. Article 553 of the Code (old number 384) provides: "Any game played for money upon a billiard table, or table resembling a billiard table, other than the game of billiards licensed by law, is punishable under the provisions of this chapter." This question is so ably discussed by Judge Roberts in the case of Stearnes v. State, 21 Tex. 692, we do not deem it necessary to discuss it here, but merely refer to that opinion. In the case of Estes v. State, 10 Tex. 300, it was in proof that defendant bet at a game played upon a billiard table called "rondo." The court held: "We do not understand that it is literally the table or structure, whatever that may be, on which the game is played that gives character and designation of a gaming table, but it is rather from the character, or the game which is played that it receives its specific designation." It has always been held that the character of the table was immaterial; it was the character of game that brought it within the meaning of the statute. The court instructed the jury:
"The characteristics of a gaming table, such as the law forbids the keeping and exhibiting for the purpose of gaming, are: 1st. It must be a game; 2nd. It must have a keeper or exhibitor; 3rd. It must be based upon the principle of the one against the many; the keeper or *Page 615 exhibitor must be against all the bettors directly or indirectly; 4th. It must be kept and exhibited for the purpose of obtaining bettors, and 5th. The test as a gaming table is, was the game played a game of the one against the many."
This definition is within all of our decisions. At the request of appellant the court gave the following charge:
"You are instructed, at the request of the defendant, that if you find and believe from the evidence that defendant, together with others, were simply shooting craps with each other, then and in that event you will return a verdict for the defendant of `not guilty' and so say by your verdict."
This drew the distinction clearly as between the contention of appellant and the State. There was some conflict in the testimony as to whether appellant merely engaged in a game of craps with others, or whether he was keeping and exhibiting a crap game, where he took all bets, or as it is said "faded" all who desired to engage in the game. As shown by the testimony, there appears to be two ways of betting at this game, the common or ordinary game where the players bet with each other, and the other where a man keeps and exhibits the game, and all players bet with him. As explained by one witness: "If it is a regular game of craps one man is supposed to be banking the game, and it is a game of the one against the many. By that expression `one against the many' I mean to say that one man runs the crap game, and banks the game and he takes all the bets that come, and if it is just shooting craps two people sitting down or standing at a table can play together or a dozen can and each man shoots at his turn and any other player can cover his bet. If one man is running a crap game why he banks the game and does not throw himself but takes the bets from the players and he is called the banker." According to the great weight of the testimony in this case, appellant did not himself "throw" nor shoot in his turn, but those betting at the game did all the shooting and throwing, and he took all the bets. Under the definitions of Judge Roberts, in the Stearnes' case, supra, this would make appellant the keeper and exhibitor of a gaming table. A.W. Sutton testified: "I saw defendant running a gambling table in there. He was running a game they call craps. That game is played with dice and I think this one was being run on a pool table. The pool table was located towards the front end of the building. By the front I mean up toward the west part of the room. I have noticed a crowd in there every time I went in drinking something. I suppose it was intoxicating liquors they were drinking. That was before the saloons opened up last fall. I do not remember that date that the saloons were reopened here. The defendant was generally stationed at one side of the table and the players on the opposite side of the table or at the end of it. The banker or man that was running the game was on one side of the table and he had money on the table and the players would put down their money, and they *Page 616 would take up two dice handed them by the banker and roll them out on the table and the numbers were designated by spots on the dice, and they were from one to six and each dice had six sides, and there was a number designated by spots on each side of the dice from one to six, and by those numbers they could tell whether they won or lost. After the shots were made if the player lost the banker would rake in the money and whenever one would win he would throw out as much money as they had bet; he covered all bets. The dice were thrown by the players. The banker, the defendant here, did not shoot the dice at all. Each player that shot the dice got what money he won from the defendant and paid to the defendant what money he lost. The player played against the banker always. I don't know how many times during this period of time I have seen the defendant doing what I have described in that place, but I should approximate the number at four or five times."
All the evidence would indicate that the game played was a banking game of craps, which had a keeper and exhibitor, and not the game of craps in which all persons engaged therein participate with each other and bet with each other.
4. Pete Kinkead testified to being in the room adjoining the Oriental Pool Hall where the crap game was played, and testified to seeing the game on several occasions. He could not be definite as to date of the occasions on which he visited this place. The indictment in this case was returned September 30, 1910, and on cross-examination he would not be positive whether it was prior to or subsequent to this date that he saw the gambling going on in this room. Appellant then moved to exclude his testimony on the ground that the witness had not fixed the time he, witness, saw the playing as prior to the return of the indictment. The State, on redirect examination, fixed the time by the witness as being during the time local option was in force in Potter County. Taking the testimony as a whole, the time when local option was in force and voted out was prior to the date of the return of the indictment. Consequently, there was no error in the court refusing to exclude this testimony.
5. The witnesses for the State, in describing the room where the gambling is alleged to have taken place, said it was a room adjoining the pool room; that at one end was a counter or bar where intoxicants were dispensed, and in a corner was this billiard or pool table where the game was played. Defendant objected to the witnesses being permitted to testify about the bar and intoxicating liquors being sold in this same room, because it was not sought to connect defendant with the sale, was irrelevant and prejudicial. As shown by the bill, there was no effort made to prove that appellant was selling intoxicating liquors in violation of law, and no effort made or evidence introduced to show that he was guilty of another offense than that charged in the indictment. The evidence admitted was essential to a description and location of the place, the room *Page 617 being devoted to both purposes, and there was no error in admitting the evidence. One witness testified that one would have to go to the door, knock thereon, and a man from the inside would open the door and admit you, when the purposes to which the room was devoted was discernible all at one glance. The whole scene was so interwoven and intermingled, a description of one could not have been given without the other.
6. The court's charge, and the charge given at the request of appellant, fully covered each and every phase of the case, and there was no error in refusing the other special charges requested.
7. The cases of Vinson v. State, 58 Tex.Crim. Rep., and Askey v. State, 20 Texas Crim. App., 443, cited by appellant, do not sustain his contention, but are authorities in support of the State's case. In those cases the defendants were not indicted for keeping and exhibiting a gaming table, but for playing, and the court held as they were exhibitors of the gaming bank or table and took all bets, they were not guilty of playing at the game, but should have been prosecuted for exhibiting the game. In this case appellant was convicted of exhibiting a gaming table, and those cases hold he is prosecuted under the proper article of the statute. Appellant also cites us to the case of Chappell v. State, 27 Texas Crim. App., 312. That case holds that thecharacter of table would be immaterial, and exactly contrary to appellant's contention in this case. In the closing part it does hold where the defendant was shown to have in no manner participated in the game, took nor made any bets, that he would not be guilty of exhibiting a gaming table. The facts of this case do not bring appellant's case within the facts as stated in that opinion. In this case the evidence would support a finding of the jury that appellant stood behind the table and took all bets. In the case of Bell v. State, 32 Tex.Crim. Rep., it is said:
"Testing the facts of this case by the leading elements of a gaming table and bank, as laid down in Stearnes' case, 21 Tex. 698 [21 Tex. 698], we think the game of craps, as exhibited by appellant, was a gaming table, as defined by articles 358, 359, et seq., Penal Code. It was a betting game. The table was specially prepared for the game, being of a certain form, and having the numbers printed thereon, from 4 to 10 consecutively. The table and game were exhibited to attract bettors. It had an exhibitor, who presided at and kept his money on the table. Every one who bet threw the dice, except the exhibitor. All bet against him, and he took every bet offered. In the crap vernacular, `he faded the bets.' He paid all the winnings of the bettors, and took all their losses. It was the one against the many, the supreme test of a gaming table or bank. The fact that a game may be played without a table does not prevent a table specially designed for the game, and exhibited, from becoming a gaming table, though there are gaming tables games which can not be played without a table. Nor is there anything in the suggestion, that in this game the *Page 618 dealer can take but one bet at a time, and the bettor throws the dice. It makes no difference whether he takes the bettors consecutively or in a body, if he is there for the purpose of taking every bet offered at his table.
"In the Stearnes case it was a raffle, in which each separately and in turn threw dice for a prize. The court says the jewelry was the lure. The real fund against which the bettor staked his money was the fund in the dealer's pocket or on the table, and the defendant was convicted of exhibiting a gaming table. Nor is there anything in the suggestion that bettors might bet against each other. The true object was to induce parties to bet against the dealer, and such was the understanding and practice of the bettors."
The facts of that case and this case are peculiarly the same, except in this case a different character of table was used, and all the decisions hold that the character of table that is exhibited is immaterial.
The judgment is affirmed.
Affirmed.
DAVIDSON, PRESIDING JUDGE, dissents.