Dalton v. State

• Decision Date: 29 April 1903
• Citation: 74 S.W. 25
• Parties: DALTON v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 25

DALTON v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1903.

Appeal from Ellis County Court; Lee Hawkins, Judge.

Frank Dalton was convicted of exhibiting a gaming table and bank, and appeals. Affirmed.

Tom P. Whipple, for appellant. Howard Martin, Asst. Atty. Gen., and Bowd Farrar, Co. Atty., for the State.

BROOKS, J.

Appellant was convicted of exhibiting a gaming table and bank, and his punishment assessed at a fine of $25, and 10 days' confinement in the county jail.

The following is a statement of the facts upon which this prosecution was predicated: Will Pippin testified that he "worked for Frank Dalton and his father (Tom Dalton), selling paddles in their turkey raffles in Ennis, during the fall of 1901. I think I commenced work for them about November, 1901, and quit December 24, 1901. The Daltons (Frank and Tom) ran two turkey raffles in Ennis that fall, and I worked some time in each. One was located on the vacant lot near Freeman's corner; the other, in the back end of Sim Brown's saloon. They were about three blocks apart. I worked most the time in the one in Brown's saloon. The raffles were constructed and run in this manner: There was a wheel on a pivot, so that the wheel stood upright. The face of the wheel was divided into 48 spaces, and each space numbered consecutively from 1 to 48, inclusive. Between each number a peg was driven, separating them, and from above, pointing downward on the face of the wheel, was a piece of leather, so that when the wheel was turned this piece of leather would be knocked aside by the pegs so long as the wheel turned, and, when it stopped turning, the leather would rest upon one of the numbered spaces between two of the pegs. In connection with the wheel were 12 paddles, each having on it four numbers corresponding with four numbers on the wheel; and, when the wheel was turned, the man holding the paddle which had upon it the number corresponding with the number on the wheel indicated by the piece of leather won. The other eleven lost. This wheel set upon a counter about 20 feet long, but at no particular place upon the counter. Both defendant and I stood behind the counter, selling chances. Those who bought were in front. We sold each chance for 10 cents, and upon selling a chance would hand the buyer one of the paddles. When all 12 chances were sold, the wheel would be turned. Any one might turn it. Sometimes some one in front would turn it. When it ceased turning, the one whose paddle had upon it the number corresponding with the one indicated by the leather on the wheel won. The paddles were then returned to us, and either Frank or I then gave him a ticket on which was printed: `Good for one turkey. Frank Dalton.' There was a coop at the back of the saloon, with several turkeys in it. Sometimes the winner would like a turkey, but more frequently they would sell the ticket to persons who were in the house. Ed Brown and Crip Crocker stayed in and around the house, and would buy the turkey tickets. Have seen them doing this both at the raffle near Freeman's corner and the one at Brown's saloon. I saw several parties take turkeys, but a large majority of those who won sold their tickets for the money. It was a rule of the house that no one who was selling paddles could take a chance, but while I was not at work I took several chances. I won, I think, twice. I sold my tickets, I think, to Ed Brown, I think, for 90 cents, but it might have been $1. I could not estimate the number of raffles of any day, nor during the time I worked for them. If a good crowd was in the house, they would buy the chances as fast as we could collect for them; and, as soon as one roll was over, we would sell the paddles and roll again. I did not buy back any of the tickets. When Tom Dalton employed me, he told me I was only to sell paddles, and not to buy back the tickets. I do not know where Ed Brown and Crip Crocker now are. I heard Brown was at Houston. Crocker was at Ennis a few days ago, but, I understand, is now gone. Sometimes I have given change over the counter to Ed Brown, but I do not know who furnished him the money with which to buy the tickets. The raffle was advertised this way: Three or four negroes with musical instruments would parade the streets, and a booster would go with them, calling out about the raffle. Another man would stand at the front door, calling out that the raffle was going on inside. We also had music on the inside, where the raffle was." On cross-examination by defendant, he testified: "Defendant had a coop outside of the building where the raffle was run, in which he had twenty-five or thirty turkeys. He also had a number of turkeys—I do not know how many—at his home. During November and December I saw Tom Dalton buy a wagon load of turkeys, and I saw him go off with several other wagon loads, but did not see him close the trade for them. In the description of the game above mentioned, I will say that it was a game of perfect chance. Each person who paid ten cents received a paddle on which were four numbers. The same number of paddles were sold every time, and when the wheel was turned each and every holder of a paddle had the same prospect of gain, and the same opportunity to lose. The turkeys were raffled at one dollar and twenty cents each. The turkeys cost Dalton from seventy cents to a dollar each. The wheel was never rolled unless there were twelve paddles sold, no more or no less. They had music in front or back of the house in which the raffle was carried on. They had counters, behind which the men stood who sold the chances. The wheel was not kept in any particular place, and any one who desired could turn it when the raffle was made up. Dalton frequently announced that he would not buy any turkeys back, and it was his orders to me, when he hired me, that I was not to take any chances while working, or to buy any turkeys back." It is also proved that appellant sold a paddle or chance to Lon Williams, and the state elected that particular keeping and act of exhibition.

The first bill of exceptions complains that the county attorney asked Will Pippin: "How were the musicians dressed that played on the streets in Ennis, and announced that Dalton had a turkey raffle in Brown's saloon? That is, were they, or not, dressed so as to attract attention?" To this appellant objected because the same was irrelevant and not in any way material, nor did said testimony tend to show that defendant had exhibited a gaming table and bank, or either of them. The witness answered that the "musicians were dressed in ordinary clothes, about like other negroes." Even conceding error, we see no harm in the introduction of this testimony.

Bill No. 2 complains of the following portion of the court's charge: "If you believe from the evidence, beyond a reasonable doubt, that defendant established a raffle for gaming purposes, and exhibited it to obtain betters thereat, and you further believe from the evidence, beyond a reasonable doubt, that he kept or exhibited the same as these terms have been heretofore defined, and that the same was a table or bank, and kept and exhibited by...