Appellant contends that if he be guilty of any criminal offense it would not be for the one herein charged, but would be guilty of the offense of permitting gaming on premises controlled by him, and cites as evidence thereof the testimony of appellant's wife, who testified that she had on the date alleged in the indictment, rented the room in which the gaming occurred to one Omar Smith, who was using this room for the purpose of gaming. Evidently, however, the jury refused to accept this version of the occurrence, and predicated its verdict upon the testimony of other witnesses. For instance, the testimony of Agnes Downs, who worked as a waitress at the establishment of appellant, showed the following: "During the month that I knew him (Omar Smith) there prior to this raid, except for a short time, I saw him there nightly, and each night that I saw him there he was in and out of this partitioned-off room from time to time. Sometimes Smith would stay there until we closed, and sometimes he would leave before we closed. The place sometimes closed about three o'clock, and sometimes it was four in the morning. Sometimes it was four or five, whenever the crowd left."
We are impressed with the fact that if the jury believed *Page 128 the above testimony, it would be destructive of the effect of the testimony of appellant's wife wherein she claimed that Omar Smith, whom she had never seen before, came to her on the afternoon of the day of the raid and rented this room for the purpose of giving a party for some friends of his. Taken into consideration with the push button, operated by the appellant on the night of the raid, his statement to the officer relative to gambling at this establishment, as well as the tools of trade found therein such as a table with a cover thereon marked for the purposes of playing with dice, rakes, etc., — it seems to us that the jury had sufficient proof upon which to say that appellant was keeping and interested in keeping a certain room or place for the purpose of betting and wagering with cards and dice. It will be noted that appellant's wife did not attribute the possession or ownership of such paraphernalia to be in Omar Smith, and we think the jury were justified in concluding that same was the property of and furnished by appellant.
We think the motion should be overruled, and it is so ordered.