Houghton v. State

• Decision Date: 01 January 1874
• Citation: Houghton v. State, 41 Tex. 136 (Tex. 1874)
• Parties: JOHN HOUGHTON v. THE STATE.
• Court: Texas Supreme Court

41 Tex. 136

JOHN HOUGHTON

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Williamson. Tried below before the Hon. E. B. Turner.

Terrell & Walker, for appellant, cited Stearnes v. The State, 21 Tex., 695;Booth v. The State, 26 Tex., 203; The State v. Burton, 25 Tex., 420;Crow v. The State, 6 Tex., 336;McElroy v. Carmichael, 6 Tex., 454;Kirkland v. Randon, 8 Tex., 10; The State v. Bishop, 8 Ired., 266; Harless v. United States, 1 Morris, (Iowa,) 169; The State v. Mosely, 14 Ala., 390; The State v. Allaire, 14 Ala., 435; Huff v. The State, 2 Swan, 279.

George Clark, Attorney General, for the State.

MOORE, ASSOCIATE JUSTICE.

The appellant was indicted at the March term, 1873, of the District Court of Williamson county, for “unlawfully keeping and exhibiting a certain gaming device called ten-pins, on which money was then and there bet.”

The evidence upon which the appellant was convicted of the offense of which he is charged by the bill of indictment was his admission, made, it seems, from the statement of facts on the trial, that he “had been engaged for eleven months just prior to the finding of the indictment in keeping a ten-pin alley, and during that time money had been bet on the regular game of ten-pins played in said alley; that said ten-pin alley was kept open for the public, and that those who played at the game of ten-pins were permitted to bet on the same when they desired to do so.” In defense, appellant proved that the license tax assessed by law had been paid upon said alley during the time it was kept by him, as previously admitted.

Upon this evidence the jury returned a verdict against appellant, and the court overruled his motion for a new trial, in which we are clearly of the opinion there was error.

As the instructions given the jury are not in the record, the case was probably submitted, by consent, upon verbal instructions. We are consequently unable to tell the precise view of the law entertained by the court below. It seems probable, however, from the brief of appellant's counsel, that it was believed by the learned judge who presided on the trial of the cause in the District Court, that the offense charged in the indictment was, “under the authority of the case of Wolz v. The State, 33 Tex., 335, sufficiently established by the evidence to support the verdict. It must be admitted that some parts of the opinion in that case tend to support the conclusion that betting on any character of table, whether licensed or unlicensed, kept or exhibited for playing games of skill or chance, is illegal, and subjects the keeper of such table...