The appellant was tried and convicted of the offense of keeping and being interested in keeping a certain premises, building, room, and place for the purpose of being used as a place to bet, wager, and gamble on a horse race, and his punishment was assessed at confinement in the State penitentiary for a term of two years.
The indictment, omitting the formal parts thereof, reads as follows: "H. R. Thomas, or or about the 28th day of June, A.D. 1934, in said county and State, did then and there unlawfully keep and was then and there interested in keeping a certain premises, building, room and place there situated for the purpose of being used as a place to bet, wager and gamble on a horse race and horse races and as a place where people would then and there resort to bet, wager and gamble on horse races."
The testimony adduced upon the trial shows that appellant was engaged in maintaining on the second floor of the River Oaks Building situated on Fannin street in the city of Houston in Harris county, Texas, a room and rooms where quite a number of people resorted for the purpose of betting on horse *Page 630 races to be run in this State and elsewhere. The rooms were equipped with tables upon which were placed sheets of paper and upon which sheets were printed the name of the race track, the name of the horses and the name of the jockey riding each respective horse in the race that was to be run either in Texas or elsewhere. A person who entered the room, after looking over the sheets, if he desired to make a bet on any horse or horses, would walk up to a window provided for that purpose and indicate to the man behind the window the horse upon which he desired to place a bet, whereupon the person behind the window would issue to the person making the bet, after receiving the amount of money desired to be bet, a ticket with the number and name of the horse and the amount of money bet written on the ticket. At the conclusion of the race the names of the winning horses were announced and those holding tickets with the named winner thereon would go to a window provided therefor and cash their tickets.
The appellant's contention is that the indictment does not charge the offense contemplated under article 625, P. C., which is a felony and under which article the prosecution proceeded, but that if he is guilty of any offense he is guilty of offending against article 649, P. C., which is a misdemeanor, and therefore the district court did not have jurisdiction of the subject-matter. In order to arrive at a correct solution of the question, we must look to all the preceding and succeeding articles of the statute relating to gaming.
Article 615 of chapter 6, P. C., relates to betting at any game of cards.
Article 616, P. C., relates to betting on a game of dominoes.
Article 618, P. C., relates to betting on a game played with dice.
Any person offending against either of said articles of the statute is guilty of a misdemeanor.
Article 625 of said chapter of the Penal Code, under which appellant was convicted, reads as follows: "If any person shall keep, or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice or dominoes, or to keep or to exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, he shall be confined in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, *Page 631 machines, wheels, or devices, or things are licensed by law or not. Any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."
Article 647, P. C., reads as follows: "No person, or any agent of any association of persons or any corporation, shall at any place in this State, engage or assist in pool selling or bookmaking on any horse race or by means of any pool selling or bookmaking, take or accept any bet or aid any other person in betting or taking or accepting any bet upon any horse race to be run, trotted or paced in this State."
Article 648, P. C., reads as follows: "No person or any agent of any association of persons or corporation, at any place in this State, by pool selling or bookmaking or by means of telegraph, telephone or otherwise, shall aid or assist any other person in wagering, betting or placing a bet or in offering to wager, bet or place a bet of anything of value on any horse race to be run, trotted, or paced at any place in this State or elsewhere."
Article 649, P. C., reads as follows: "No owner, agent or lessee of any property in this State shall permit the same to be used as a place for selling pools or bookmaking or wagering or receiving or assisting any person in placing any bet or in receiving or transmitting any offer to bet anything of value on any horse race to be run, trotted or paced at any place in this State or elsewhere."
Article 650, P. C., reads as follows: "Whoever violates any provision of the three preceding articles shall be fined not less than two hundred nor more than five hundred dollars, and be imprisoned in jail not less than thirty nor more than ninety days."
Article 625, supra, is a general statute, while article 647, 648, 649, and 650, supra, are special statutes relating to horse races and the betting on horse races, etc., just as article 646, P. C., is a special statute relating to betting on football and baseball games, and article 643, P. C., relating to betting on elections. If appellant, under the facts in this case, could be prosecuted and convicted under article 625, supra, then any person who provided a building, room, or place where people might resort to bet or wager on football, baseball, or the result of an election could also be prosecuted under said article, although horse racing, football, baseball, or betting on elections is not mentioned or referred to therein. If the Legislature had *Page 632 intended to include the offense of betting on horse races, bookmaking, or pool selling in the general statute, article 625, supra, it could have said so and obviated the enactment of special statutes on the subject. Where two or more articles of a statute are apparently in conflict with each other, they should be so construed as to give effect to each and all, if possible, and where there is a general statute and also a special statute embracing the same or similar subject-matter, the special statute will control. A matter not included within a penal statute should not by judicial construction be read into it because in so doing the judiciary would usurp the functions of the Legislature. The legislative intent should be ascertained from the words of the act itself. To gamble with cards, dice, or dominoes is a misdemeanor under article 615, 616, and 618, supra, unless the same is done on premises or in a building or room kept for that purpose. Inasmuch as article 625, supra, specifically mentions the games and things which are therein prohibited, it occurs to us that the legislature did not intend to include therein betting on horse races, football, and baseball games, bookmaking, or pool selling. If the State's contention were correct, then there would be a conflict between Articles 627, P. C., and 649, supra, but if we give effect to all of the acts pertaining to gaming, which can be done without nullifying any, then it follows that the general statute must yield to the special statute, and the offense of which the appellant stands charged is but a misdemeanor of which the district court did not have jurisdiction. See article 5, P. C.
The words "or as a place where people resort to gamble, bet or wager upon anything whatever" (article 625) is but a cleaning up clause in the construction of which the rule ejusdem generis must be resorted to, and when we apply that rule we find that it refers to and means acts of like or similar nature as those specifically mentioned in said article. It does not seem reasonable that any one will seriously contend that horse racing, bookmaking or pool selling are similar in nature as gambling on cards, dice, or dominoes. We believe that what we have said here is supported by the opinion of this court in the case of Ex parte Roquemore 60 Tex. Crim. 282,131 S.W. 1101, 32 L. R. A. (N. S.) 1186, and authorities there referred to.
It seems that it was the intention of the Legislature to prohibit the operation and maintenance of a place where those games are engaged in which at the time article 625, supra, was *Page 633 enacted were most commonly and usually resorted to for gambling in rooms and houses, and not horse races and football or baseball games.
Having reached the conclusion that appellant's contention should be sustained, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.