The judgment herein was affirmed during the present term, at which time I entered my dissent. An opinion has since been written overruling a motion for rehearing. On account of certain statements in the opinion on rehearing I have thought it advisable to make a few further observations.
My brethren hold that under the testimony appellant is guilty of *Page 625 exhibiting a gaming table. Under my view of the statute and wording of the Act of the Legislature, my brethren are clearly wrong. Appellant, if guilty of anything, was guilty of exhibiting a banking game. The evidence seems to be uncontradicted that the dice were thrown on a billiard table, and the State sought to hold appellant guilty under the theory that he was the banker and received the bets and was one against the many, under the decision in the case of Stearns v. State, 21 Tex. 692. Article 558, Revised Criminal Statutes, provides that "if any person shall, directly or as agent or employe for another or through any agent or agents, keep or exhibit, for the purpose of gaming, any policy game, any gaming table, bank, wheel or device of any name or description whatever, or any table, bank, wheel or device for the purpose of gaming, which has no name, or any slot machine, any pigeon hole table, any jenny lind table, ten pin alley or table or alley of any kind whatsoever," etc. It will be observed from reading this statute that the Legislature by specific and positive language made the exhibition of a gaming table and a gaming bank different offenses, and constituted by different acts to be proved by attendant facts and circumstances. It is all sufficiently plain without resorting to any rules of "technical" construction or "technical" rules of construction that the Legislature made and constituted "gaming table" one thing and a "banking game" another thing. That the Legislature had a right to do this is not to be questioned. The distinction between gaming table and banking game, wherever that question has come before the court for decision, has been kept in view. Some of the decisions might appear at first blush to be a little confusing, but when the issue decided in the cases is kept in view, there is no confusion. Some of the cases in regard to a game of craps have not been specific in this matter, but in such cases I think it will be clearly discoverable that the decision was drawing the distinction between the old fashion "head to head" game of craps and a game played where there was a dealer or exhibitor, or at least "one against the many." I do not believe any of those decisions, when properly viewed, are in conflict with each other. It is asserted in the opinion on rehearing that Whitney's case in 10 Texas Crim. App., 377, was overruled by Chappel v. State, in 27 Texas Crim. App., 310. I do not understand the reasoning of my brethren by which this conclusion was reached. The two cases by any fair construction or intendment are not in conflict but in strict harmony and unison and were intended so to be. It was necessary that the Whitney case be drifted from in order that the judgment in this case should be affirmed. I cite in support of the correctness of the views here expressed Whitney v. State, supra; Chappel v. State, supra; Webb v. State, 17 Texas Crim. App., 206; Shaw v. State, 35 Tex.Crim. Rep.; Estes v. State, 10 Tex. 300. I might also cite as sustaining my views Harman v. State, 22 S.W. Rep., 1038, and Bell v. State, *Page 626 32 Tex. Crim. 187, and a great number of others. Judge Harper in his opinion cites the Harman case, supra, as sustaining his views. I wrote the opinion in the Harman case and Judge Simkins wrote the opinion in the Bell case. An inspection of the Shaw case and the Whitney case and the Chappel case and the Webb case, and the facts under which they were decided, will show that a comparison between those cases and the Harman and Bell cases show absolutely no conflict. In each of those cases, under the facts, the game exhibited was held to be a gaming table. The facts are revealed by each one of those cases in which that ruling was made. Take the Harman case for instance: It was there said: "Appellant was convicted of keeping and exhibiting a gaming table. He exhibited a `crap table,' at which fifteen or twenty persons were playing or betting. The table was a half circle in form, behind which he stood, and took all the bets from the players, who were standing on the outer side of the table. The table had numbers marked on the surface. Under the rules of the game the players were not permitted to bet against each other, but only against the keeper of the table. He stood on one side of the table, with his money and chips before him, and everybody played at the game on the opposite side, and bet against him. He took the money lost by the players, and paid all bets won by them. This was clearly a gaming table." Under the facts stated in the opinion it will be discovered that there was a table made expressly for the purpose of exhibiting the crap game and the table was so exhibited. It was made and exhibited for that purpose. It formed a part of the game in that it was kept at that place and exhibited generally for the purpose of people gambling with craps. The Bell case was similar. These two cases evidently held this to be an exhibition of a gaming table by reason of the fact that the table was constructed for that purpose and exhibited for the purpose of inviting all parties who desired to bet on the game or play at the game to do so. This, I think, brings it sufficiently within the definition of a gaming table and what has been understood to be a gaming table to justify the correctness of the Harman opinion. But the facts in this case are in no way similar to those in the Harman and Bell cases. In this particular case the parties went into a room where there was an old billiard table and for convenience sake played the game upon the billiard table. This table was not exhibited for that purpose; it was just accidentally selected for the occasion. If simply the playing of the game of craps with "one against the many" constitutes a gaming table, then wherever the game is played, the one who deals or manages the game against the many, the receiver of all the bets, would be exhibiting a gaming table anywhere and under any circumstances. A bunch of negroes meeting in the open woods, carrying on their game at night by the light of a tallow candle, surrounding the man who was doing the banking, would, under the majority opinion, constitute a gaming table, and not a banking game. The surface of the earth, wherever *Page 627 such game occurred, would, under the rule of the majority in this case, constitute a gaming table. The writer of the Harman case also wrote the opinion in the Shaw case. Under the facts of one it was held the party exhibited a gaming table; in the other it was held the game was a banking game. These matters are determined by the application of the law to a given state of facts. I do not propose to pursue this matter further than to say that the construction placed upon the statute by my brethren obliterates the distinction between a banking game and a gaming table in the face of the declared purpose and intent of the Legislature to make them different games. "Technicalities" have been resorted to to destroy the legislative intent and purpose as declared by positive legislation, and this in the face of the statute, Penal Code, article 9, which provides that "this Code and every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words of the law." The plain import of the language of the statute, article 558, is that any person who shall exhibit a gaming table or any person who shall exhibit a banking game shall be guilty. The two games are different — made so by legislative enactment. This is the plain import of the words used by the Legislature. "Technicalities" have been resorted to to destroy the plain import of the language employed by the Legislature in the face and positive command of legislative required construction.
Another plain proposition has been violated and it is this, that all rules of construction and interpretation should uphold the purpose and intent of legislative acts and not destroy it.
Without pursuing the matter further I state the above as some of the reasons why I can not agree with my brethren in their holding. A party should be convicted under the law as it is written and not under a law substituted by "technicalities."
I therefore enter this as my dissent.