Perry v. State

• Decision Date: 03 February 1954
• Docket Number: No. 26763,26763
• Citation: 160 Tex.Crim. 8,266 S.W.2d 171
• Parties: PERRY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 171

266 S.W.2d 171

160 Tex.Crim. 8

PERRY v. STATE.

No. 26763.

Court of Criminal Appeals of Texas.

Feb. 3, 1954.

A. D. Downer, McDaniel & Hunt, Center, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is violation of Art. 627 P.C. in permitting premises to be used for gaming. The punishment, 2 years in the penitentiary.

There are no formal bills of exception.

The evidence shows that appellant rented from the owner a building in Center, Texas, which consisted of two separate rooms. One of the rooms appears to have housed a cafe, while the other was used as a shoe shine parlor. During appellant's tenancy, the cafe which had been in the back room was moved to the front, and the shine parlor was moved from the front to the rear room.

The state proved that on or about the date alleged in the indictment, a number of persons were found gambling with dice in the rear room. Appellant was present and had some money in his hand.

There is evidence, also, that there was gambling there on prior occasions and that one of the shine boys took the money bet when a three was rolled by the person throwing the dice. He was seen to pay appellant some money after the game on the occasion first mentioned.

Appellant testified and offered testimony to the effect that the rear room, or shine parlor, was under the control of the shine boys and that he did not consent but, on learning of it, ordered that the gambling cease.

Having rented the two rooms, appellant cannot escape responsibility on the ground that he was not in control of both the cafe and the shine parlor. De Los Santos v. State, 65 Tex.Cr.R. 518, 146 S.W. 919.

The evidence is sufficient to sustain the conviction.

Appellant first presents his complaint that the trial court declined to place certain officers under the rule which had been invoked at his request.

In Wilson v. State, Tex.Cr.App., 255 S.W.2d 520, relied on by appellant, the trial judge certified that the presence of the deputy sheriff witness was not necessary to the transaction of the court's business, thereby rendering inapplicable the rule that the judge is warranted in excusing from the rule officers whose presence is deemed necessary or incident to the operation of the court or the trial.

In the Wilson case the deputy sheriff was present at the time of the alleged offense and was permitted to testify after hearing the testimony of appellant and a witness for the state. His testimony corroborated the testimony of the state's witness and contradicted that of the defendant. We concluded that under these facts an abuse of discretion was shown.

The Statutes, Arts. 644 and 645 Vernon's Ann.C.C.P., and the authorities construing their provisions, are to the effect that whether a witness should be excused from the rule is within the descretion of the trial judge and his ruling will not be disturbed unless the record discloses abuse of such discretion.

Whether or not a witness may be permitted to testify who has remained in the courtroom while another witness is testifying is likewise a matter of discretion, but this discretion must not be abused.

Here the complaint is that among others, Justice of the Peace J. J. Jackson, John Hoyt, agent of the Texas Liquor Control Board, and Wade Ramsey, Constable of Precinct 1 of Shelby County, were excused from the rule, over appellant's protest.

Hoyt was the third witness called by the state. Prior to his being called, Ned Garrett had testified that he owned the building in question and had rented it to appellant on a month to month basis for some time. He described the location of the two rooms and of the building and testified that appella...