Rasor v. State

• Decision Date: 19 June 1909
• Citation: 121 S.W. 512
• Parties: RASOR v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W. 512

RASOR v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1909.

Motion for Rehearing Withdrawn October 6, 1909.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Walter Rasor was convicted of keeping a building, room, or place where people resorted for gaming, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was charged with keeping a building, room, and place where people resorted for the purpose of betting, wagering, and gambling with cards in the first count of the indictment, and in the second count with knowingly permitting a building, room, and place under his control to be used for said purpose. Both counts of the indictment were presented by the court to the jury, and the jury found appellant guilty, and assessed his punishment at two years' confinement in the penitentiary.

The charging part of the indictment is as follows: "* * * That one Walter Rasor, alias Shorty Rasor, alias Shorty, alias A. J. Ward, alias J. A. Ward, in the county of Tarrant and state aforesaid, on the 5th day of September in the year of our Lord one thousand nine hundred and seven, did unlawfully keep, and was then and there interested in keeping, a building, room, and place for the purpose of being used as a place to bet, wager, and gamble with cards, and did then and there keep, and was then and there interested in keeping, said building, room, and place as a place where people resorted for the purpose of betting, wagering, and gambling with cards, against the peace and dignity of the state. And the grand jurors aforesaid, upon their oaths as aforesaid, do further present in and to said court that one Walter Rasor, alias Shorty Rasor, alias Shorty, alias A. J. Ward, alias J. A. Ward, in the county and state, on the date aforesaid, did unlawfully and knowingly permit a building, room, and place, which was then and there under the control of the said Walter Rasor, alias Shorty Rasor, alias Shorty, alias A. J. Ward, alias J. A. Ward, to be used as a place to bet, wager, and gamble with cards and as a place where people resorted for the purpose of betting, wagering, and gambling with cards, contrary to the form of the statutes," etc. Appellant filed a long motion to quash this indictment; but, without taking up appellant's criticism seriatim, we will say that the indictment is in strict consonance and accord with the statute passed by the Thirtieth Legislature. Laws 1907, p. 107, c. 49. We furthermore hold that the statute is not unconstitutional on the ground that it inflicts a cruel and unusual punishment.

Bill of exceptions No. 2 complains the court erred in organizing the jury in this case, insisting that the act of the Thirtieth Legislature known as the "jury wheel law" (Laws 1907, p. 269, c. 139) is unconstitutional. This has heretofore been decided against appellant in the case of Smith v. State (Tex. Cr. App.) 113 S. W. 289. The other matter complained of in said bill is embodied in the judge's qualification of the bill, which is as follows: "Instead of only 10 jurors appearing in response to the summons mentioned on the first part of the preceding page, 17 jurors appeared and 7 were excused by the court, and the sheriff's return showed that about 8 of said jurors could not be found in the county. The court, in response to motion of counsel for defendant to issue process for all of those jurors upon the regular jury for the week who had failed to appear for jury service, etc., caused process to be issued for the absent jurors, and directed the clerk to issue an attachment for said absent jurors, which was done, and said attachment placed in the hands of the sheriff. Whereupon the sheriff took said process and after about a couple of hours' time reported back to the court that said absent jurors could not be found in the city, and that they lived in the country at a distance ranging from 8 to 20 miles, and thereupon the court ordered the sheriff to go out and pick up talesmen, which was done." This showing, as evidenced by the explanation of the court, of the sheriff's diligence to secure the absent jurors, is not such as the law requires. It appears that in the first instance the sheriff reported the jurors were not to be found in the county. In the second instance it appears that after a casual inquiry of two hours he found they lived in the country, some 8 or 20 miles from the county seat. This clearly shows laches on the part of the sheriff in his effort to summon...