Bell v. State
| Decision Date | 06 November 1918 |
| Docket Number | (No. 5173.) |
| Citation | 206 S.W. 516 |
| Parties | BELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bowie County; H. F. O'Neal, Judge.
John Bell was convicted of keeping a gaming house, and he appeals. Reversed and remanded.
Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was convicted of keeping a gaming house and allotted two years in the penitentiary.
The indictment contains three counts — the first charging appellant with keeping and being interested in keeping certain premises for the purpose of being used as a place to bet with cards and dice; second, that he kept and was interested in keeping certain premises for the purpose of keeping a table for gaming; and, third, that he knowingly permitted premises under his control to be used as a place to bet and wager and gamble with cards and dice.
The evidence shows that appellant had rented four upstairs rooms of a house in Texarkana, that he surrendered the lease contract to the owner, and that it was subsequently rented to another party; that under the control of the other party gambling was carried on in one or more of these rooms. When appellant surrendered his lease contract, and until the second party had rented the property, he paid a nominal rent for one of the rooms, in which to store his goods and belongings. When appellant surrendered his contract to the owner, Robinson, it was understood between them that Robinson desired to rent the property, and appellant offered to aid him in securing another renter. This appellant did, and the other party moved in about two months after appellant vacated, and paid Robinson the rent for the time that he occupied the rooms. Gambling was carried on in one or more of the rooms while in possession and under the control of the second renter. There is abundant testimony to the effect that gambling was carried on. It is also shown that appellant played in some of the games.
There is no evidence of a direct nature that appellant had any interest in the house, and the state's case, therefore, was one of circumstantial evidence, growing out of the facts stated. In the absence of any direct or positive evidence that appellant was interested in the house as owner or keeper, the case became one of circumstantial evidence. His connection, if any, as keeper, is largely dependent upon the fact that he was in and about the house, and knew that gaming was carried on, and indulged in such gaming. Quite a number of other parties were in and about the house, and gambled, and some of them rather extensively as evidenced by the testimony. The court did not instruct the jury with reference to the law applicable to cases of circumstantial evidence, and this constitutes one of the grounds relied upon by appellant for reversal. We are of opinion this proposition is well taken, and the court erred in not giving such charge.
Bill of exceptions No. 9 recites that, while Martin was testifying in behalf of the state, the district attorney asked: "Did you see Jerry Roberts up there?" (meaning the premises where the gambling was being carried on). The witness answered: "Yes, sir." "Did you see him buy chips from John Bell, defendant?" "No, sir; I didn't see him buy any chips." "Didn't you swear before the grand jury that you did?" Appellant objected, and the court sustained the objection. The district attorney then stated, while the witness was on the witness stand: "I am laying a predicate for a perjury case." Exception was taken to this remark.
We think it should have been sustained, and the jury informed that this testimony was illegal. Such remarks should not be indulged. The witness had failed to give testimony adverse to the state. It was a failure of testimony, and therefore he could not be contradicted or impeached, and under such circumstances his evidence before the grand jury was not permissible. In order to permit such witness to be impeached upon this line, he must give testimony that is adverse to the state. There seems to be no question of the fact that the remark of the district attorney, that he was laying a predicate for a case of perjury against the witness, was clearly inadmissible. It was a statement of his to the effect that the witness was swearing falsely, and this before the jury.
The assistant county attorney, testifying for the state, stated that he knew the place where the alleged gambling is said...
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Sanchez v. State
...for keeping and being interested in such keeping. The refusal of this charge is assigned as error. The case of Bell v. State, 84 Tex. Cr. R. 197, 206 S. W. 516, is cited as authority. As we understand that case, it holds directly the opposite to appellant's contention. In said case proof wa......
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Mayfield v. State, 28128
...that appellant owned or had an interest in the premises as keeper, the case became one of circumstantial evidence. Bell v. State, 84 Tex.Cr.R. 197, 206 S.W. 516. It is undisputed that the room was used for gambling with dice, and that appellant was present and participated on several occasi......
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Davis v. State
...a gift, the evidence of its being a sale being only inferential. Renfro v. State, 82 Tex. Cr. R. 197, 198 S. W. 957, and Bell v. State, 84 Tex. Cr. R. 197, 206 S. W. 516, were gaming cases and were clearly upon circumstantial Brownlee v. State (Tex. Cr. App.) 260 S. W. 865, is also cited, i......