Simmons v. State, 19841.
| Decision Date | 02 November 1938 |
| Docket Number | No. 19841.,19841. |
| Citation | 120 S.W.2d 1061 |
| Parties | SIMMONS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
Fred Simmons was convicted of accepting and placing a bet on a horse race, and he appeals.
Affirmed.
H. J. Bernard and B. L. Palmer, both of Houston, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is accepting and placing a bet on a horse race; the punishment, a fine of $500 and confinement in jail for one year.
Sam Hefti testified that he went to appellant's place of business on the 26th of October, 1937, and gave appellant fifty cents as a bet on a horse named Leah Fern. The witness identified a racing form sheet which had been taken from appellant's place of business by officers, and which showed that appellant had received fifty cents from witness as a bet on a horse race.
Appellant did not testify and introduced no witnesses.
Appellant's motion to quash the indictment was based on several grounds. The indictment embraced two counts, only the first count being submitted to the jury. Omitting the formal parts, we set forth said count as follows: "Fred Simmons, on or about the 26th day of October, A. D. 1937, in said county and state, did then and there take and offer to take and accept and place for Sam Hefti a bet and wager of money, to-wit: fifty cents, of the value of fifty cents, on a horse race."
The first ground of the motion to quash was concerned with the failure of the indictment to allege the name of the horse upon which the bet was placed. It has been held by this court that, in charging the offense of exhibiting a gaming table and bank, it is unnecessary to particularly mention the name of the bank. 20 Tex. Jur. 652; Jefferson v. State, Tex. Cr.App., 22 S.W. 148. Also it is not necessary to mention the name of the game in an indictment charging betting at a game of cards, and proof that the game was poker supports an averment that the accused "did bet and wager at a game of cards." Inman v. State, 47 Tex.Cr.R. 609, 85 S.W. 796. We are of opinion that it was not necessary to allege the name of the horse upon which the bet was placed. The gist of the offense was the acceptance of the bet on a horse race. The statute (Art. 652a, Section 1, Vernon's Annotated Penal Code of Texas) reads as follows: "Any person who takes or accepts or places for another a bet or wager of money or anything of value on a horse race, dog race, automobile race, motorcycle race or any other race of any kind whatsoever, football game, baseball game, athletic contest or sports event of whatsoever kind or character; or any person who offers to take or accept or place for another any such bet or wager; or any person who as an agent, servant or employee or otherwise, aids or encourages another to take or accept or place any such bet or wager; or any person who directly...
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