Wilkerson v. State

• Decision Date: 11 February 1903
• Citation: 72 S.W. 850
• Parties: WILKERSON v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 850

WILKERSON v. STATE.

Court of Criminal Appeals of Texas.

February 11, 1903.

Appeal from Dallas County Court; Ed. S. Lauderdale, Judge.

Pat Wilkerson was convicted of gaming and he appeals. Affirmed. Rehearing denied.

Miller & Fouraker, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The charging part of the indictment under which appellant was convicted alleges that he "did unlawfully play at a game with cards in a public place, to wit, a room in the St. George Hotel building, then and there occupied and used for the purpose of gaming." It is contended, under article 379, White's Ann. Pen. Code, as amended, that this indictment is not sufficient, because it fails to negative the fact that the game of cards was in a private residence. The amended article reads as follows: "If any person shall play at any game with cards at any house for retailing spirituous liquor, storehouse, tavern, inn or other public house, or in any street, highway, or other public place, or in any outhouse where people resort, or at any place except a private residence occupied by a family, he shall be fined." The contention is that the expression, "or at any place except a private residence occupied by a family," relates to and qualifies all the provisions of the article. This article prohibits gaming in four different sections—at public places, such as houses for retailing spirituous liquor, storehouse, tavern, inn, and other public houses; or any street, highway, or other public place; or in an outhouse where people resort; or at any place except a private residence. The latter clause is simply to cover all other places not enumerated in the three previous subdivisions, and does not apply to and qualify the previous subdivision. Appellant was indicted under the first clause of this statute, and Comer's Case, 26 Tex. Cr. App. 509, 10 S. W. 106, is in point. Therefore we are of opinion that the indictment is sufficient. Hodges v. State (decided at present term) 72 S. W. 179. This is the only question presented for revision.

There being no error in the record, the judgment is affirmed.

On Rehearing.

(March 18, 1903.)

On a former day of this term the judgment herein was affirmed. The only question discussed was the sufficiency of the indictment. We are now asked to review the original opinion sustaining the indictment, urging error in so doing under the act approved March 12, 1901, on page 26, c. 22, Acts 27th Leg. Article 379, White's Ann. Pen. Code, was so amended by said Legislature to read as follows: "If any person shall play at any game of cards at any house for retailing spirituous liquors, store house, tavern, inn, or other public house, or in any street, highway or other public place, or in any outhouse where people resort, or at any place except a private residence occupied by a family; or if any person shall bet or wager any money or other thing of value, or representative of either, at any game of cards, except in a private residence occupied by a family, and the provisions of this act that permit gaming in a private residence shall not apply in case such residence is one commonly resorted to for the purpose of gaming, he shall be fined not less than ten nor more than twenty five dollars." Article 381: "In prosecutions under the two preceding articles it shall not be necessary for the state to prove that any money or article of value, or the representative of either, was bet at such game when the prosecution is for playing cards at a house for retailing spirituous liquors, store house, tavern, inn, or any other public place, or in any street, highway, or other public place, or in any outhouse where people resort, or at any place except a private residence occupied by a family; provided, that nothing in this title shall be so construed as to prevent the playing of any game for amusement at a private residence occupied by a family." The contention of appellant is that in the first portion of article 379 the clause "at any place except a private residence occupied by a family" enters into and forms a part of the definition of the preceding clause of said article, and, that being true, it is necessary, wherever the indictment charges the playing of cards at a house for retailing spirituous liquors, storehouse, tavern, inn, public house, etc., the indictment must also negative the fact that it is a private residence occupied by a family. We have carefully reviewed this matter in the light of the authorities, and are more fully convinced that the original opinion is correct, and appellant's contention erroneous. We think this is manifest from reading the subsequent portion of said article with reference to betting at these places, as well as the matters mentioned in article 381, quoted above. If appellant's contention is correct, then every indictment under article 379 with reference to playing cards at a house for retailing spirituous liquors, storehouse, tavern, inn, or other public houses, or any street, highway, and other public places, or any outhouse where people resort, must negative the exception that these various places are not private residences occupied by a family. It occurs to us that the mere statement of this portion of the article negatives the idea that the latter clause, "or at any other place except a private residence occupied by a family," enters into the preceding clauses of the statute. For instance, if a party was charged with playing at an outhouse where people resort, it would be necessary to negative the fact that said outhouse was a residence occupied by a family. A great deal has been written in regard to the question of negativing in indictments the exceptions contained in articles denouncing penal offenses.

"Text-writers and courts of justice have sometimes said that, if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception, but, where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defense, and must be shown by the accused. Undoubtedly, that rule will frequently hold...