Crain v. State

• Decision Date: 01 January 1855
• Citation: 14 Tex. 634
• Parties: JOEL B. CRAIN v. THE STATE.
• Court: Texas Supreme Court

14 Tex. 634

JOEL B. CRAIN

v.THE STATE.

Supreme Court of Texas.

1855.

In an indictment for playing cards it is sufficient for the State to charge and prove that the defendant played a game of cards, on which money was bet, at an out-house where people resort, (or other place mentioned in the statute,) in the county at any time within twelve months previous to the finding of the indictment.

Where the State has proved one act of card-playing within the period of twelve months the defendant will not be permitted to show that the particular playing so proved is not the same playing upon proof of which the indictment was found. (Note 92.)

Appeal from Rusk. The indictment charged that the defendant “did play at a certain game with cards, upon which money was bet, in a certain outhouse where people resort, then and there situate, contrary,” &c.

After the State had proved a playing as alleged the defendant offered to prove that the playing proved was not the same playing upon proof of which the indictment was found, and that there was then pending in the same court another indictment against defendant for the playing now proved; but the court refused to permit such proof to be made.

The court instructed the jury as follows: “If the jury are satisfied from the evidence that the State has proved that defendant has played a game of cards, upon which money was bet, at an out-house where people resort, situated in said county, at any time within twelve months previous to the finding of the indictment in this case, they should find the defendant guilty.”

Bowden & Chilton, for appellant. The only question in this case is can the defendant, after the State has proved one act of card-playing within the period of twelve months, be allowed to show that the particular playing so proved is not the offense for which he is on trial, but a separate and distinct act, for which he is or may be separately indicted and convicted? In other words, can the State, in gaming cases, convict for one offense on the proof of another of similar character committed at a different time? No such principle is to be found among the general rules of evidence, and our statutes do not sanction it.

It is admitted that it is sufficient for the State to prove a playing at any time within the statutory bar; but this admission does not touch, far less take away, the right of the defendant to go into the question of time and circumstance, with a view to identifying the particular playing proved, and presenting any matter of defense that might be available. A party must be indicted before he is tried; but in this case the defendant has been found guilty of an offense, or supposed offense, of which it is clear the witness knew nothing, and for which it did not appear that he was indicted, at least in this proceeding.

When the defendant pleads a former conviction, it is the constant practice of the State to avoid the effect of the plea by proving that the offenses are separate and distinct. The same latitude should be allowed defendant.

Time need not generally be proved precisely as laid; but when the date of any fact is necessary...