Meador v. State

• Decision Date: 18 June 1947
• Docket Number: No. 23697.,23697.
• Citation: 204 S.W.2d 628
• Parties: MEADOR v. STATE.
• Court: Texas Court of Criminal Appeals

204 S.W.2d 628

MEADOR v. STATE.

No. 23697.

Court of Criminal Appeals of Texas.

June 18, 1947.

Rehearing Denied October 15, 1947.

Appeal from District Court, Lynn County; Louis B. Reed, Judge.

Andrew Jackson Meador was convicted of keeping a place for gambling with cards and dice, and he appeals.

Judgment affirmed.

Carl Rountree and Karl Cayton, both of Lamesa, for appellant.

W. C. Huffaker, Jr., Dist. Atty., of Tahoka, and Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

A grand jury in Dawson County returned an indictment against appellant, charging in the first count thereof, (it being the only count submitted upon the trial) that appellant in Dawson County,—"* * * on or about the 6th day of May, A. D. 1946, and anterior to the presentment of this indictment, in the County and State aforesaid, Andrew Jackson Meador did then and there unlawfully keep and was then and there interested in keeping a certain building, room, and place there situate, for the purpose of being used as a place to bet and wager, and to gamble with cards and dice then and there played; and as a place where people did then and there resort to gamble, bet and wager on games played with cards and dice." The prosecution was under Art. 625, P.C. (1925).

Upon the court's own motion, and for reasons stated in the order, venue was changed to Lynn County, where appellant was tried, convicted, and his punishment assessed at two years in the penitentiary.

The facts show that appellant lived some two or three miles from Lamesa in Dawson County on a farm. His residence was some two hundred yards from the public road and was a four or five room house. Immediately behind the residence and within the curtilage was a one room house in which the gambling was going on. A private road led over appellant's land from the highway to appellant's residence. So far as we can ascertain from the facts before us it was an open road, that is, it had no gates on it, and led to and around appellant's residence into the back yard where the room or house in question was located. About 12:00 o'clock at night on May 6, 1946, Mr. Bennett, who was the Sheriff of Dawson County, one of his deputies and another party, went to appellant's place. About two weeks prior thereto appellant approached the sheriff in the town of Lamesa and the following conversation occurred between them. We quote from the sheriff's testimony:

"* * * About two weeks before this occurrence, I started to cross the street toward the court house about nine or nine-thirty, and Jack called me, and came over, and came on out to where I was, and asked me if I had a complaint on him, and I said no, and asked him why, and he said, `Well, a fellow got mad out to my house last night because he lost some money, and he said he was going to come up here and file a complaint on me,' and I said, `Well, as far as I know, he hasn't,' and he said, `Well, we have been playing poker out there, but there is not going to be any more of it. This is the last of it.' I said, `If it is the last of it, Jack, I am not going to pry into this; as far as I am concerned, there won't be anything done about it.'"

We do not find where the sheriff received any further information about gambling going on at appellant's premises between this conversation and the night of May 6th. From the facts before us it appears that the sheriff was skeptical about appellant's statement that there would be no more gambling at his house after his conversation with the sheriff, because that officer says quite frankly, "I went out there that night in order to attempt to catch them gambling, or was checking to see if they were." He could not see any gambling from the public road, nor when he first turned into the private road leading to appellant's residence, nor when he drove up to the front of the residence. When he drove into the back yard several cars were parked there, and through the windows and door of the small house in question he saw a number of men around two tables, apparently gambling, although the sheriff says that through the windows and door he could not see any cards, dice or money. About the time the sheriff and deputy got out of their car appellant came out the back door of his residence, walked with the officers up to the door of the small house, told someone on the inside to unlatch the screen door which was fastened on the inside, opened the door and invited the officers to go in. The officers had not told him they were going in, nor requested him to permit them to go in. After going inside the officers found ten men whose names they secured; some of them were seated at a round table playing poker, others were standing about a long table where a dice game was in progress, both games being played for money. The officers also saw a dice cup and what is called a "bump board", against which the dice are thrown. The officers had no search warrant nor any warrant for the arrest of appellant, nor any for any of the other parties found present. The sheriff testified that he did not arrest anyone that night. We apprehend that he meant no one was taken into actual custody. He told them to report in town Monday morning, and left them there.

Appellant did not testify, but a lady who was spending the night with appellant and his wife testified that they went to a show about eight o'clock, at which time no cars were in the yard; that they got back about eleven o'clock, at which time there were some cars parked in the back yard; that she saw no gambling, and that if appellant went out to the room in the back yard she knew nothing about it. The parties who were gambling testified that before the officers came appellant had been out to the room and brought them some ice water.

Ewell Roberson, one of the gamblers, testified that he and some boys went to the place in question about six o'clock in the afternoon and that they gambled until the officers came. He did not remember whether appellant was there when they first got there. This witness had been out at this little house several times before this occasion when they gambled. Appellant had told this witness in town that he did not want them to gamble any more at his place, and on this particular night had told them before the officers came to quit. Other witnesses present on the night in question testified to the gambling with dice and cards at that time and on prior occasions. Sometimes appellant would gamble with them, and at other times he did not play. One witness testified that on the night in question appellant had been in and out of the room where they were playing before he brought them the ice water. Some of the witnesses testified that they had seen in the little house where they gambled a bucket of eggs, a saddle and a bed roll. Independent of anything the officers testified to seeing or finding on the occasion in question, the witnesses who had engaged in gaming in the little house gave testimony which was sufficient upon which the jury could predicate their verdict that appellant had kept said room for the purpose of being used as a place to gamble with cards and dice, and to which people resorted for that purpose, and this, regardless of whatever appellant's attitude was towards the gaming upon the particular occasion on the night of May 6th.

The court charged the jury that although they found that the room in question was used as a place to gamble, and to which people resorted for that purpose they could not find appellant guilty unless they found beyond a reasonable doubt that appellant had knowledge thereof and consented thereto, and that even though appellant played and bet at games in the said house they could not...