Tinker v. State

• Decision Date: 23 February 1910
• Citation: 125 S.W. 890
• Parties: TINKER v. STATE.
• Court: Texas Court of Criminal Appeals

125 S.W. 890

TINKER v. STATE.

Court of Criminal Appeals of Texas.

February 23, 1910.

Appeal from Scurry County Court; C. R. Buchanan, Judge.

A. E. Tinker was convicted of betting at a gaming table, and appeals. Reversed and remanded.

John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

The appellant was indicted in the court below for unlawfully betting at a certain gaming table, to wit, a pool table. He was convicted, and his punishment assessed at a fine of $10 and 13 days in the county jail.

The state's witness, in the trial of the case in the court below, testified that he was the constable of precinct No. 1, Scurry county, Tex.; that he saw the appellant and four others playing in a five-handed game of pool; that they played five games; that he saw Oz Smith pay the proprietor of the pool room 50 cents; that he saw J. L. Beach pay the proprietor 50 cents; that the participants in the game were Tinker, Smith, Beach, Baugh, and Dawson; that Smith lost two games, Beach lost two games, and Tinker lost one game. The witness testified that he did not see Tinker pay the proprietor any money, but Tinker simply remarked, "This one is on me;" that the games were played in the Davis pool hall; that each of the other parties, when they paid 50 cents, remarked that he was paying for two games; that 5 cents a cue was charged for each game, making a five-handed game cost 25 cents; that Baugh and Dawson each remarked that they did not owe anything, when settling for the five games was taking place. This witness further testified on cross-examination that the whole amount that was due on said five games, of five cues in each game, was $1.25, and Smith and Beach each paid 50 cents, and that the appellant simply remarked that one of the games was on him, but that he never saw appellant, at that time or any other time, pay any money. The appellant testified that he frequently played pool in the Davis pool hall, and that he had never paid the proprietor of the pool hall for playing, and that the said Davis had never charged him anything for playing; that, appellant having been in the pool hall business himself, it was simply a courtesy extended to him by the said Davis, and that he never paid, whether he won or lost; that he played as what is called "an odd man," and that the pool hall owner never gets anything, whether he wins or loses; that he never had any understanding with the players that the loser must pay the fees of the table; that so far as he knew each paid for his own cue; and that he had never paid any money for playing. He says he does not recall whether he played in that particular game or not. He says he frequented the hall, and, further: "Yes, you might call me sort of a booster for the pool hall; I play there a great deal."

Appellant, in his motion for a new trial, complained that the court erred in not granting him a new trial because of the misconduct of the jury, in that he had not received a fair trial, because one of the jurors who tried the cause was not a fair and impartial juror, in that E. A. McMath, a day prior to his selection as a juror, in discussing the pool hall cases, stated that the witness Chapman was acting right as an officer in obtaining evidence against the players of the pool hall in the manner he did, and he was with him, and that this was the only way to catch them and break up this pool hall business, and that the said juror, McMath, while they were deliberating upon the verdict, advocated the giving of a jail sentence, and stated that this pool hall business ought to be broken up, and that a fine alone would not do it, and that the said defendant was one...