Randolph v. State

• Decision Date: 01 January 1853
• Parties: H. RANDOLPH v. THE STATE.
• Court: Texas Supreme Court

9 Tex. 521

H. RANDOLPH

v.THE STATE.

Supreme Court of Texas.

1853.

The rule which requires criminal statutes to be construed strictly applies to those only of a highly penal character, not to mere misdemeanors.

Statutes should not in any cases be so strictly construed as to defeat the obvious intention of the Legislature.

The words of the statute against gaming, “or any other banking game,” &c., must have their intended effect; and consequently an indictment will lie for betting at any banking game, naming it, although it be not enumerated in the statute.

Rondo, as played in this case, was proved to be a banking game.

This case distinguished from Crow v. The State, 6 Tex. R., 334.

Appeal from Walker. The appellant was convicted of betting “at a certain bank called rondo, the same being then and there exhibited for gaming.” The proof was that the defendant did bet at a game called rondo; that one man held the stake, and the bet was against his pile; that it was played with small balls on a billiard table. Thomas Cotton, senior, being sworn, said that he understood this game; that it was called rondo; he had seen it played in New Orleans; that when one man held the stakes and the others bet, it was a banking game; that it might be played so as not to be a banking game. James Moore testified that he did not understand it to be a banking game, as played at Huntsville. There was a motion for a new trial on the facts, and a motion in arrest of judgment on the law.

A. P. Wylie, for appellant. The bill of indictment is founded on article 556, (Hart. Dig., p. 213,) which received a construction at the hands of this court at Tyler, during the Spring Term, 1851, in the case of The State v. Crow, in which the doctrine is clearly laid down that an indictment cannot be sustained for betting at a game upon ten-pin alleys or billiard tables; and as the proof shows that this game was played with balls on a billiard table, it comes both within the reasoning and letter of that decision. It would seem to be wholly immaterial, under the ruling in that case, whether the game of rondo is to be considered a banking game or not; for it is there expressly laid down that it is not indictable to bet at any banking game, except those mentioned and specifically prohibited by the statute; and as the game of rondo, although well known, is not mentioned and specifically prohibited by the statute, it follows that an indictment will not lie for betting on that game.

Attorney General, for appellee. The indictment, although assailed on a motion in arrest, is unquestionably good, being in the terms of the statute. (Hart. Dig., arts., 1476, 1477.) Motion for a new trial on the facts, no question of law being raised. Not only is there some evidence to support the verdict, in the sense of Carter v. Carter and that class of cases, but it greatly preponderates in favor of the verdict. The question turns upon the fact whether or not rondo is “a banking game,” and that is settled by the learned testimony of Charles Cotton, on the grounds that “one man held the stakes and the others bet at his pile.”

The defense is mainly based upon the reasoning of the court in the case of Crow v. The State, 6 Tex. R., 334; but that case is not in point here, as there is no attempt to show that the game here played belongs to a billiard table, and is thereby licensed.

This case is not presented by the State as an instance of “a gaming device,” but of “a banking game,” “of the like kind” with those mentioned in the statute by name, and therefore the reasoning in Crow v. The State on this point does not apply.

WHEELER, J.

The appellant was indicted and convicted under articles 1477...