Ash v. State

• Decision Date: 19 January 1938
• Docket Number: No. 19294.,19294.
• Citation: Ash v. State, 114 S.W.2d 889, 134 Tex.Cr.R. 208 (Tex. Crim. App. 1938)
• Parties: ASH v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W.2d 889

ASH v.STATE.

No. 19294.

Court of Criminal Appeals of Texas.

January 19, 1938.

Rehearing Denied March 30, 1938.

Commissioners' Decision.

Appeal from Travis County Court; Geo. S. Matthews, Judge.

Mervin Ash was convicted of bookmaking, pool selling, and taking a bet on a horse race, and he appeals.

Affirmed.

Polk Shelton and Wright Stubbs, both of Austin, and King C. Haynie, of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of bookmaking, pool selling, and taking a bet on a horse race and his punishment was assessed at a fine of $200 and confinement in the county jail for a period of thirty days.

Appellant's first complaint is that the court erred in declining to sustain his motion to quash the complaint and information, which, omitting the formal parts, reads as follows:

"That on or about the 13th day of January, A. D., 1937, one, Marvin Ash, did in Travis county, Texas, unlawfully engage and assist in pool selling, bookmaking, and taking and accepting a bet on a horse race, which was then and there to be run on the 13th day of January, A. D., 1937 at Alamo Downs in the county of Bexar and the state of Texas, contrary to the statutes," etc.

Appellant takes the position that the information is duplicitous in that it charges in one count three separate and distinct offenses.We cannot agree with him in this contention.Pool selling, bookmaking, and the taking of a bet on a horse race all and each embrace the essential elements of a game of chance and, under the statutes, are but different ways and means by which the offense of gaming may be committed.

In all cases where the offense charged is a misdemeanor, the information may charge the offense to have been committed in all the ways named in the statute.SeeRay v. State, 71 Tex.Cr.R. 268, 158 S.W. 807;Blackwell v. State, 92 Tex.Cr. R. 473, 244 S.W. 532;Willis v. State, 34 Tex.Cr.R. 148, 29 S.W. 787;Stevens v. State, 70 Tex.Cr.R. 565, 159 S.W. 505;Prendergast v. State, 41 Tex.Cr.R. 358, 57 S.W. 850;Travinio v. State, 92 Tex.Cr. R. 140, 242 S.W. 242.

Appellant's next contention is that the complaint and information failed to negative the fact that the act complained of was not committed under the certificate system of betting, which at the time was legal under article 655a, Vernon's Annotated Penal Code.

An indictment or information need not negative an exception unless the same is contained in the act which creates the offense.SeeKerley v. State, 89 Tex.Cr. R. 199, 230 S.W. 163;Brown v. State, 96 Tex.Cr.R. 409, 254 S.W. 495, 257 S.W. 891.

Moreover, subsection 2, article 655a, among other things contains the following provisions:

"The said certificate system as herein authorized shall not be construed as either pool selling, betting, or bookmaking within the meaning of Articles 645, 647 and 648 of the Penal Code of the State of Texas, Title 2, Chapter 6, according to the 1925 revision."

Subsection 3 of said article provides that "the use of such system shall not be permitted at any other place than within the enclosure stated in the license," etc.

Therefore it was not necessary in the charging part of the information to negative the provision relating to the certificate system of betting under said article.

Appellant's next complaint is that the court erred in declining to instruct the jury on the law of circumstantial evidence and also in declining to submit appellant's requested instruction relative thereto.If the case depended entirely upon circumstantial evidence, then the appellant's contention would be correct.The proof shows, however, that appellant had leased the room in which the alleged pool selling, bookmaking, and betting was conducted; that he had several persons employed in the conduct of said business.Jesse Wright testified that he was working for the appellant at the Turf at the time the officers raided the place; that his duties were the taking of bets and delivering of tickets to people who made bets, for which services the appellant paid him a salary of $25 per week.Mr. Waggoner testified as to the paraphernalia that he found in the room, such as loudspeaker, telephone, cash register, score board, and the returns of the races which came in over the loudspeaker.Hence, it is apparent that there was direct and positive testimony that appellant was engaged in the business of pool selling, bookmaking, and taking bets on a horse race to be run in this state or elsewhere.Therefore, the state's case did not depend entirely upon circumstantial evidence.SeeClore v. State, 26 Tex.App. 624, 10 S.W. 242;Sellers v. State, 61 Tex.Cr.R. 140, 134 S.W. 348.

The matters complained of in bill of exception No. 3 have been thoroughly considered by us and deemed to be without merit.

Appellant next contends that article 655a, Vernon's Annotated Penal Code, by implication repeals articles 647 and 648, Penal Code.We cannot agree with him for two reasons.First, because repeal of statutes by implication is not favored by the law; second, because subsection 2 of article 655a specifically provides that the certificate system as therein authorized shall not be construed as either pool selling, betting, or bookmaking within the meaning of articles 647 and 648 of the Penal Code of this state.This clearly indicates that the Legislature did not intend to repeal said articles, but intended that the same should remain in full force and effect.

Appellant also contends that since article 655a exempts persons, associations, etc., from the operation of articles 647 and 648, it is discriminatory and therefore the last-named articles are unconstitutional.We find ourselves unable to agree with him.If it should be held that article 655a is discriminatory and therefore unconstitutional, it could not, in our opinion, be successfully maintained that by reason thereof, articles 647 and 648, P.C., are also unconstitutional.Article 655a does not, however, discriminate against any person.It only requires that persons who seek to engage in the certificate system shall comply with the provisions of the said article by obtaining a license to engage therein at certain places only.We take it that it will not be seriously contended that the state, under its police power, not only has the right to prohibit acts denounced by articles 647 and 648, but also to regulate the same and confine activities thereunder to specified places.

For example, persons playing cards in public places are subject to prosecution under our Penal Code, but persons who play in a private residence are exempt under certain conditions.Seearticle 615, Penal Code.Other instances might be cited to illustrate the correctness of our position.SeeStansbury et al. v. State, Tex. Cr.App., 111 S.W.2d 717, delivered November 17, 1937, and not yet reported [in State Reports].

All other matters complained of have been carefully considered by us and found to be without merit.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

Appellant was prosecuted under article 647,P.C.1925, which reads:

"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."

The penalty fixed by article 650 was a fine not less than two hundred nor more than five hundred dollars, and imprisonment in jail not less than thirty nor more than ninety days.

It was charged that appellant offended against said law on or about the 13th day of January, 1937.He was tried and convicted on the 20th day of April, 1937.

The First Called Session of the 45th Legislature, by Senate BillNo. 2, enacted the following statute, Vernon'sAnn.P.C. art. 652a, § 1:

"Any person who takes or accepts or places for another a bet or wager of money or anything of value on a horse race, dog race, automobile race, motorcycle race or any other race of any kind whatsoever, football game, baseball game, athletic contest or sports event of whatsoever kind or character; or any person who offers to take or accept or place for another any such bet or wager; or any person who as an agent, servant or employee or otherwise, aids or encourages another to take or accept or place any such bet or wager; or any person who directly or indirectly authorizes, aids or encourages any agent, servant or...