Hart v. State

• Decision Date: 31 May 1922
• Docket Number: (No. 6725.)
• Citation: 241 S.W. 481
• Parties: HART v. STATE.
• Court: Texas Court of Criminal Appeals

241 S.W. 481

HART v. STATE.

(No. 6725.)

Court of Criminal Appeals of Texas.

May 31, 1922.

Appeal from Archer County Court; Geo. W. Alexander, Judge.

Ed. Hart was fined for playing a game of cards, and he appeals. Reversed and remanded.

W. E. Forgy, of Archer City, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The appeal is from a judgment assessing against appellant a fine of $10 for unlawfully playing a game of cards.

The state witness Lea is a justice of the peace. On Sunday afternoon, August 21, 1921, he, in company with one Carrington, went to the city tank, and there saw the appellant and some other parties sitting around in a circle. The witness crawled up within about 25 yards of them, knew all of them, and observed them playing cards. He went no nearer than 25 yards, and heard one of the parties say, "I will take one;" another say, "I will take two;" another say, "I will take three;" and another say, "I will stand pat." The witness said that he knew those were terms used in a game of poker; that he could see one of the parties apparently dealing the cards, and heard the shuffling of them. He saw no cards, as he was not close enough to see them if they had them, but knew they were playing poker from the terms used; that he was familiar with the game of "forty-two" played with dominoes, and that in that game different terms were used from those detailed; that in that game the bid was "thirty-one, thirty-two, and so on."

Shattuck for the defendant testified that on the day in question he and other parties, some of whom are mentioned as state witnesses, were at the place described, and played the game of "forty-two"; that no cards were used, only dominoes; that they went to the tank for the reason that it was cooler there than in the house; the weather being warm.

Brewer testified to the same effect that they did not play with cards, but played "forty-two" with dominoes, and no such terms as those described by the state's witnesses as, "I will take one," "I will stand pat," etc., were used by any of the parties. The terms used were "one, two, and three," meaning, of course, "thirty-one, thirty-two and thirty-three," which are often used in the game of "forty-two."

The witnesses Calvert and Metcalf each testified that on the afternoon upon which the game took place they went to the place and saw the appellant and others engaged in a game of "forty-two" played with dominoes; that no cards were used; that they watched the game for an hour or more.

Carrington, a witness for the state, testified that he was with the witness Lea, and they together watched the game; that Lea was a little closer than the witness; that he saw the parties sitting in a circle and playing some kind of a game, but was unable to distinguish its character; that neither he nor Lea went nearer than 25 yards of the place where the game was in progress.

To prove the essential fact that the game in question was played with cards, reliance is had alone upon circumstantial evidence; that is to say, upon the testimony of the witness Lea touching the language used by the parties during the game. He drew the inference that the parties were...