Francis v. State

• Decision Date: 08 June 1921
• Docket Number: (No. 5775.)
• Citation: 233 S.W. 974
• Parties: FRANCIS v. STATE.
• Court: Texas Court of Criminal Appeals

233 S.W. 974

FRANCIS v. STATE.

(No. 5775.)

Court of Criminal Appeals of Texas.

June 8, 1921.

Rehearing Denied October 12, 1921.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Jerry Francis was convicted of permitting premises to be used for gaming, and appeals. Reversed and prosecution dismissed as to one count in indictment.

Simpson, Lasseter & Gentry and Johnson & Edwards, all of Tyler, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was convicted for violation of the gaming law; punishment fixed at confinement in the penitentiary for two years. The count in the indictment upon which the conviction rests contains the following:

"* * * Did then and there unlawfully and knowingly permit property and premises there situate and then and there under his control to be used as a place to bet and wager and to gamble at games played with cards then and there played, and did then and there unlawfully and knowingly permit said property and premises to be used as a place where people resorted to gamble, bet, and wager upon games and then and there played with cards."

From the charge we quote the following:

"Our law provides that, if any person shall knowingly permit property or premises of which he is owner, or which is under his control, to be used as a place to bet or wager or to gamble with cards, or as a place where people resort to gamble, bet, or wager upon anything whatever, shall, upon conviction, be punished by confinement in the penitentiary not less than 2 nor more than 4 years."

The statute upon which the conviction purports to rest is article 559, which reads thus:

"If any person shall rent to another, or shall keep or be in any manner interested in keeping, any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes, or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever or as a place where people resort to gamble, bet or wager upon anything whatever, or shall knowingly permit property or premises of which he is owner, or which is under his control, to be so used, shall be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things, are licensed by law or not; and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

We also quote article 572:

"If any person shall permit any game prohibited by the provisions 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, he shall be fined not less than twenty-five nor more than one hundred dollars."

Article 572 was first enacted in 1881; article 559 dates from 1907. In the revision of the Penal Code adopted in 1911 both are included. By a majority opinion, this court, in Robertson v. State, 70 Tex. Cr. R. 310, 159 S. W. 713, decided, in substance, that article 559, by implication, repealed article 572, and that in adopting the Revised Penal Code containing article 572 the Legislature acted inadvertently, and that in consequence thereof article 572 was not a part of the law. Notwithstanding the decision mentioned, appellant insists that article 572 is in force, and that thereby the acts with the commission of which he is charged and convicted are not felonies, but misdemeanors; that it was not the intent of the Legislature to denounce as a felony one who merely suffered the playing of a prohibited game in his house, but to become a felony the proof must show more than the mere sufferance or acquiescence in the gaming; that it must show that the premises were kept "for the purpose of being used as a place" to gamble or to exhibit a banking game where people resort to gambling. Sanction of this view is drawn from the language of article 559, which differs from that of article 572 by the inclusion of the words quoted and italicized above. Reference is made to the case of Walters v. State, 58 Tex. Cr. R. 240, 125 S. W. 12, as giving support to the construction of the statutes contended. From the opinion of the court, written by Judge Ramsey, in that case, we take the following quotations:

"In this connection it should be stated that the prosecution in this case was under article 388f (Acts 30th Leg. p. 109), which article reads as follows: `If any person shall go into or remain in any gambling house, knowing the same to be such, or shall remain in any place where any of the games prohibited by this act are within his knowledge being played, dealt or exhibited, he shall be punished by a fine of not less than twenty-five nor more than fifty dollars. Gambling house and gaming house, as used in this act, is meant any place where people resort for the purpose of gaming, betting or wagering.' * * *

"We think that from the language of the act * * * referred to, `If any person shall go into or remain in any gambling house, or remain in any place where any of the games prohibited by this act are within his knowledge being played,' taken in connection with the language `gambling house and gaming house,' is meant any place where people resort for the purpose of gaming, betting, or wagering, and that it was intended to make it an offense for persons to frequent gambling halls where people resorted, and where the same are conducted, in a sense, continuously. The evils the Legislature had in mind were no doubt to prevent patronage and frequenting of such places by persons who might be tempted into evil conduct, or where in such centers of vice the idle, the vicious, and the corrupt might become a menace to society, and be provoked to breaches and violations of the law. In this case the house was a private residence. The evidence does not show it was a gaming house, in the sense in which that term is used. True, a private residence may become a gambling house, if continuously or even frequently resorted to for this purpose; but the house here is not made to appear by the evidence to be such a place. It was not intended, we think, by the Legislature, to make it an offense for one who either as a guest, visitor, or inmate of a house failed to flee from same as from a scourge, because without his knowledge and probably without his consent other inmates or persons were for the time being engaged in gaming. The whole tenor of the act above quoted manifestly bears this construction."

This view was also considered and rejected by the majority court in Robertson v. State, supra. It cannot be denied that the language adopted is not the same, and that article 559 is susceptible of the construction that the "permitting" therein referred to was "for the purpose of being used as a place," etc. To hold that the acts charged in the indictment are punishable as felonies, and not as misdemeanors, it becomes necessary to decide: First, that in the adoption of article 559, article 572 was repealed by implication; second, that in re-enacting article 572 in the Revised Penal Code of 1911, the Legislature did so unconsciously, and with no intent that that article should have a vital place in the law. It may be conceded that there are instances in which repealed statutes, having been re-enacted in revision, have been held inoperative upon the theory that their re-enactment was inadvertent. Sutherland on Statutory Construction (2d. Ed.) vol. 1, § 281, and vol. 2, § 451; Lyon v. Ogden, 85 Me. 374, 27 Atl. 258; Olsen v. Haritwen, 57 Fed. 849, 6 C. C. A. 608; Bank v. Patty (D. C.) 16 Fed. 751. To apply this principle to article 572, it is necessary first to inquire whether article 572 was, in fact, repealed by implication by the enactment of article 559. Upon this the decision of this court in Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208, has a direct and definite bearing. Simons was charged with the offense of "permitting gambling" in his house. The indictment was drawn under article 572, supra, and he was charged and convicted of a misdemeanor. Upon appeal he assailed the judgment upon the ground that article 572 was repealed by the enactment of article 559. The members of the court were unanimous against this contention. Judge Ramsey, in writing the opinion, thus expressed the conclusion of the court:

"It is elementary that repeals by implication are not favored. The act of the Thirtieth Legislature does not in terms repeal the act on which this prosecution was based, nor does it do so by any reasonable or fair inference, and that it was not the intention so to do we think it is so manifest and clear as to admit of no doubt."

In deciding the Robertson Case, supra, the majority of the court held that the previous opinion rendered in the Simons Case, supra, was unsound, and overruled it. If all question as to the accuracy of that holding be waived, the inquiry whether in re-enacting article 572 the Legislature acted advisably or inadvertently cannot be overlooked. Bearing upon that question, we refer to the act of the Legislature passed in 1907, in which a revision of the Penal Code was directed and provided for. Acts of the 30th Legislature, c. 180; Gammel's Laws, New. Series, vol. 2, p. 377.

Section 1 makes it the duty of the Governor to appoint commissioners to "revise and digest laws—civil and criminal." From section 2 we quote:

"Said commissioners shall adopt such of the revised statutes, civil and criminal, as have been repealed or amended."

Section 4 we quote:

"Said commissioners shall embody the result of their labors in two bills; one...