State v. Gray
| Decision Date | 24 November 1943 |
| Docket Number | No. 8157.,8157. |
| Citation | 175 S.W.2d 224 |
| Parties | STATE v. GRAY. |
| Court | Texas Supreme Court |
This is an action by the State of Texas to destroy seven slot machines as gambling devices exhibited in violation of the Penal Code. Asserting ownership of the machines, the respondent, Wilson Gray, intervened on the ground that they were not being so exhibited when seized by the sheriff. A trial before the district judge without a jury resulted in an order that the machines be destroyed and that the money found in them be paid into the general fund of the county. That order was reversed and the cause rendered by the Court of Civil Appeals at Fort Worth, Chief Justice McDonald dissenting. 172 S.W.2d 722, 727.
Although there are several points of error assigned, the appeal turns on the question as to whether the state proved that the machines were being exhibited by Gray as gaming devices at the time they were seized, as adjudged by the trial court, it being Gray's contention that they were then on storage. The Court of Civil Appeals held there was no evidence "of probative value to support the court's finding that the machines were being exhibited" to obtain bettors. That holding presents the precise question we have to decide.
This is a civil action. Franco v. State, 108 Tex.Cr.R. 450, 1 S.W.2d 612. With Gray asserting a property right in the machines, the issue was triable "as in ordinary civil cases." Art. 638, P.C.1925. Hence, although there was essentially involved in the hearing before the trial judge the question as to whether Gray had committed the offense of exhibiting slot machines for the purpose of gaming, under Art. 619, ibid., it had to be determined only from a preponderance of the evidence, not beyond a reasonable doubt. Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931, 13 L.R.A. 272, 26 Am.St.Rep. 804; Corporation of Royal Exchange Assurance Co. of London v. Puckett, Tex.Civ.App., 246 S.W. 705; 32 C.J.S., Evidence, p. 1050, § 1020 b.
A summary of the testimony supporting the affirmative of the issue appears in Chief Justice McDonald's dissenting opinion, as follows : ...
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