Simons v. State

• Decision Date: 10 February 1909
• Parties: SIMONS v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 208

SIMONS v. STATE.

Court of Criminal Appeals of Texas.

February 10, 1909.

Rehearing Denied June 9, 1909.

Appeal from Navarro County Court; C. L. Jester, Judge.

Charles Simons was convicted of unlawfully permitting gaming in a house under his control, and he appeals. Affirmed.

El J. Gibson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant appeals from a judgment convicting him on a charge preferred by indictment, in that he did unlawfully permit a game with cards to be played in a house under his control, the said house being then and there a public place; that is, a gaming house. The indictment preferred against him contained a number of counts, some of which, however, were quashed on motion of appellant; and but two of the counts were sustained and submitted to the jury, being the one under which he was convicted, and another count, which alleged, in substance, that appellant unlawfully played and bet at a game played with cards, said game being alleged to have been played at a private residence occupied by a family, which private residence was commonly resorted to for the purpose of gaming.

1. It is urgently insisted that the evidence will not sustain a conviction under the particular count on which the verdict of the jury rests. If this is true, it would follow that the case should be reversed; but we cannot accede to this contention. That the house where the game was played was occupied by the family of appellant as a private residence is unquestionably shown by all the testimony. That cards were played there frequently, indeed, commonly, covering a considerable period of time, the record shows beyond any sort of doubt. In the case of Herrin v. State, 50 Tex. Cr. R. 351, 97 S. W. 88, it was held that, on a trial for playing a game with cards at a private residence, where the evidence showed that there were three or four games played, in which five or six parties indulged, in defendant's residence, where he and his family resided, this was sufficient to show that the place was a common resort for gambling. In that case Judge Davidson, speaking for the court, says: "Nor do we think the contention is well taken that the evidence is not sufficient. It shows there were three or four games played, in which five or six parties indulged, in appellant's residence, where he and his family resided, and in the dining room of said residence; that these games occurred shortly after the holidays. The two witnesses testifying to these facts participated. We believe that under the authorities this is sufficient evidence to show that it was a common resort for gambling. Wheelock v. State, 15 Tex. 257; State v. Norton, 19 Tex. 102; Lynn v. State, 27 Tex. App. 590, 11 S. W. 640; Hopkins v. State (Tex. Cr. App.) 33 S. W. 975; Floeckinger v. State, 45 Tex. Cr. R. 199, 75 S. W. 303."

Now let us examine the facts in this case. Dr. Knox testified that he was at appellant's place during the preceding winter and spring four or five times; that appellant had given him a general invitation to come there, whenever he felt like it, and have a cold bottle of beer, and said that we might get up a game of cards; that sometimes when he was there card games were played, and sometimes they were not; that when card games were played there was betting on the games; that he had seen as high as a dozen people there when these games were played, and appellant was present on each occasion when he was there; and that on one of these occasions he saw from 10 to 13 people present when a game of cards was being played; that he was a friend of the family, and considered himself perfectly welcome at appellant's home.

J. B. Rowland testified that during the winter and spring, previous to the trial, he was at appellant's house three or four times —maybe more times than that; that once or twice, when he was there, they were playing poker and drinking beer; that the first time he was there there must have been 15 present and playing cards; that those present generally participated in drinking a bottle of beer, smoking cigars, eating a lunch, etc., and had a general nice time; that he saw appellant playing in one of these games of poker; that there was betting on these games; that the participants would buy checks or chips to bet with, and sit around the table and play poker with cards, and use the checks or chips to bet with; that appellant usually had the checks, and they were obtained from him; that the checks were of different colors, and represented different values; that the checks used in playing said games were cashed by appellant, and that most of the time he was present; that these games of poker were played on an ordinary round table with a hole in the center; that the checks were put through this hole into a receptacle for the "take-off"; that he did not know who this went to, but that this "take-off" was a contribution from the different players in the house to the man in charge of the game. He further states that the house had several rooms, and that he saw a game in two of the rooms, but had only seen gaming in the front room on one occasion, and that was the night of the big crowd. On cross-examination he testified that he could not swear there were more than two games of poker there between January and April 1st, but his impression was that there were more than two games. He further testified that usually he was told that they were going to have a game, and phoned to or notified to come down there; that on the occasion referred to he did not see Dr....