Marks v. State

• Decision Date: 10 April 1907
• Citation: 101 S.W. 805
• Parties: MARKS v. STATE.
• Court: Texas Court of Criminal Appeals

101 S.W. 805

MARKS v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1907.

Appeal from Ellis County Court; Lee Hawkins, Judge.

Henry Marks was convicted for playing craps, and appeals. Reversed and remanded.

E. P. Anderson, Jr., and Farrar & Pierson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for playing craps under a charge that it was not done at a private residence. The evidence discloses that the game was played at a private residence.

The court charged the jury that if they should find that appellant bet at a game played with dice, called "craps," at a house occupied by Charley Harris, or by him and other members of his family, but further believe that the house was a gaming house, as the same has been heretofore defined, then they should find the defendant guilty. The charge defined a gaming house as one where gaming is practiced; a gambling house; a house or room whose use is intended to facilitate gaming purposes, and where sporting characters are invited or permitted to congregate for gaming, or to take money or other things of value upon trials of chance or skill. The contention is that these charges are erroneous under the facts. Appellant asked a counter proposition to the effect that, if craps are played at a private residence, it would make no difference that people resorted there for gaming purposes. This charge was refused. Appellant also asked a peremptory instruction of acquittal, which was refused.

As before stated, the evidence shows conclusively that the game of craps was played at a private residence, and, second, that the house was commonly resorted to for the purpose of gaming with the consent of the owner or occupant of the residence. Among other games there played was monte and chuck-a-luck. Under the terms of article 388. Pen. Code 1895, the playing of dice at a private residence is excepted from the provisions of the law, and is therefore not a violation of said statute. The game of craps played was not a banking game, or one against the many, but was the old-time original game of craps. In Borders v. State, 24 Tex. App. 333, 6 S. W. 532, practically the same charge was given, and under facts that show the game of craps was played at a house commonly resorted to for gaming purposes; and this court reversed the judgment, holding that, as the statute had exempted crap playing at a private residence from punishment, the conviction was erroneous. That case...