Broaddus v. State, 21556.

• Decision Date: 23 April 1941
• Docket Number: No. 21556.,21556.
• Citation: 150 S.W.2d 247
• Parties: BROADDUS v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W.2d 247

BROADDUS v. STATE.

No. 21556.

Court of Criminal Appeals of Texas.

April 23, 1941.

Commissioners' Decision.

Appeal from Grimes County Court; Gerald Fahey, Judge.

Aubrey Broaddus was convicted of the misdemeanor of permitting the operation of a gaming device upon her premises, and she appeals.

Judgment affirmed.

Percy Foreman, of Houston, for appellant.

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

CHRISTIAN, Judge.

Conviction for a misdemeanor; punishment being assessed at a fine of $25.

The prosecution proceeded under Article 628, P.C., which reads as follows: "Whoever permits any game prohibited by the preceding articles of this chapter to be played in his house, or a house under his control, or upon his premises, or upon premises under his control, the said house being a public place, or the said premises being appurtenances to a public place, shall be fined not less than twenty-five nor more than one hundred dollars."

Article 619, P.C., provides: "If any person shall directly, or as agent or employé 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, or table of any kind whatsoever, regardless of the name or whether named or not, 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, wheels, devices or slot machines are licensed by law or not. Any such table, bank, wheel, machine or device shall be considered as used for gaming, if money or anything of value is bet thereon."

Article 620, P.C., reads as follows: "It being intended by the foregoing articles to include every species of gaming device known by the name of table or bank, of every kind whatever, this provision shall be construed to include any and all games which in common language are said to be played, dealt, kept or exhibited."

We quote Article 621, P.C.: "The following games are within the meaning and intention of the two preceding articles, viz.: Faro, monte, vingt et un, rouge et noir, roulette, A.B.C., chuckaluck, keno and rondo; but the enumeration of these games shall not exclude any other properly within the meaning of the two preceding articles."

The proof on the part of the state, as well as that of appellant, was to the effect that appellant permitted a game to be played on her premises which is described in the testimony as follows:

"The Jumbo Parade is about forty inches high and is a sort of console cabinet. It does not have legs but is a sort of square box standings on its little end and the end that is up has a glass top on it and at the back of this top is a leaf sort of like glass on top and it is painted something like the other glass and there are numbers painted on both glasses.

"There is an opening on the flat glass over the top of the game so you can see if the person playing the game has managed to get all the monkeys or the lions or the tigers or the elephants in a row by manipulating a control lever placed in front of the console. Before the game can be played, it is necessary to insert a five-cent coin in an opening on the table part of the console near the front.

"The upright portion of the console top with the figures on it is the score board and it has at the top printed `Your Score.' If the person playing the game succeeds in lining up two monkeys he makes a score of 2,000 and if he gets two monkeys and a camel he makes a score of 4,000 and if he lines up two bears and an elephant he makes a score of 10,000 and so on like that.

"There is a little wooden trough with a nickle-plated bottom and a glass top and a steel ball and a plunger similar to a plunger on a marble table on the right-hand side of the game and after the player has succeeded in lining up whatever animals he is able to get in a line on the reels in the console, he can propel the steel ball by drawing back the plunger and letting it go. Depending upon how hard or how easily he discharges the plunger, he may succeed in shooting the steel ball into an opening and through another trough to the place where the ball will set off a switch that will set the game so that the successful player can play it again without putting any nickle in it.

"If he has made a 2,000 score he can play it twice free without putting in any additional coins and if he has made a 4,000 score he can play four free games and so on at the rate of one free game for each 1,000 score.

"There is no way the game can award slugs and no coin chutes to award cash and it is not possible for the game to pay the player anything at all except free games and they come automatically if he succeeds in lining up the animals and then succeeds in making the proper shot with the steel ball and plunger."

The sheriff of Grimes County testified as follows: "I watched several customers play the game and then I played it myself about six times, putting in a five-cent coin each time. I made a 2,000 score once and got to play two more games free as the machine set itself for the play. I asked what I had won when I made the 2,000 score and was told by the young lady cashier that I had won the right to play the game twice more. I asked if they did not give some money or prize in merchandise and she said no they did not give any such prizes or award."

On cross-examination he said: "Yes, sir, I suppose you would say I got my money's worth in entertainment. I like to play the game to see if I can make the score or if I can line up the different animals. All the players seem to enjoy playing the game." Further, he testified: "No, sir, I never saw anyone bet on any Jumbo Parade game and I never heard of anyone doing it."

In State v. Langford et al., Tex.Civ.App., 144 S.W.2d 448, 449, the game under consideration, and there declared to be a gaming device, was described as follows: "The record shows that the four marble machines in question were owned and operated by Dewitt Langford and were exhibited under his direction by the other four appellees. The machines consisted of a playing board in which there were a number of holes in which marbles used in playing the game could be lodged. The playing board was protected by a glass cover. Springs and resilient pins were driven into the surface of the playing boards for the purpose of diverting the marbles and causing them to roll in uncertain directions across the surface of the boards. The player in order to secure a marble with which to play the...