Williams v. State

• Decision Date: 31 May 1905
• Citation: 87 S.W. 1155
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

87 S.W. 1155

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1905.

Appeal from Caldwell County Court; John N. Gambrell, Judge.

Kid Williams was convicted of gaming, and appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $10, and he appeals.

Appellant complains of the action of the court refusing to permit him to put witness Walter Frazier on the stand as his (appellant's) own witness. It appears that this witness was placed on the stand by the state, and gave in his testimony and was cross-examined. Subsequently defendant placed witness Henderson on the stand, and proved by said witness that the reputation of Frazier in the community where he lived was bad for truth. Subsequent to this appellant called the witness Walter Frazier, remarking he would not vouch for the witness, he having impeached him. The bill shows appellant would have proven new and substantive facts; that is, that the games testified to by said witness, though at the house of Walter Frazier, were all played in the room occupied by some other party, whose name is not disclosed, and that said room was not under the control and management of said Walter Frazier; that his wife and children and himself occupied another portion of said house; and that he did not permit the playing of cards in the portion of the house occupied by his wife and children, unless he and his family were present; and, further, that the portion of the house under his control was never made a common resort for the purpose of gaming, and that only a few games of poker were ever played there, and only for amusement, with "a nickel ante and five cents of sweetening." As stated, this occurs to us to be new and original testimony of a purely defensive character. Witness Frazier was appellant's witness, and if he desired his testimony he should have put him on the stand as any other witness testifying originally on his behalf. About this bill it is a little peculiar that appellant should not have disclosed the name of the party in whose room said games were played. If this was some real party, appellant might have secured him as a witness to the facts which he attempted to prove by Walter Frazier, for whom he would not vouch, and whom he proposed to treat as a state's witness.

Appellant complains that the court erred in refusing to allow him to withdraw and continue the case, after he had gone to trial, because the state selected some other date than the 15th of September, 1904, as alleged in the information. He says he was surprised, because the state was not confined to the occasion alleged in the information. We do not understand it to be the rule that the state is ever confined to the particular day alleged in an...