Wolz v. State

• Decision Date: 01 January 1870
• Citation: 33 Tex. 331
• Parties: F. WOLZ v. THE STATE.
• Court: Texas Supreme Court

33 Tex. 331

F. WOLZ

v.THE STATE.

Supreme Court of Texas.

1870.

1. The word “gaming” has an innocent as well as a culpable signification. In the phrases “for the purpose of gaming” and “used for gaming,” to be found in article 2047, Pas. Dig., it has a culpable sense and is synonymous with betting.

2. By the words “keep” and “keeping” in the same enactment, is intended a holding in readiness a table for the purpose of obtaining betters.

3. Whenever it is evident that the keeping of a table is not for the purpose of obtaining betters, there is no violation of the statute. A table may lawfully be kept and used for games of recreation or amusement.

4. See this case for a lucid exposition of the polite game of “pigeon-hole.”

5. By article 2052, Pas. Dig., it is not intended that a conclusive case is established against a defendant by proof that he played, dealt or exhibited a game mentioned in the three preceding articles. Such proof makes only a prima facie case, which the defendant may destroy by evidence that there was nothing bet, etc.

Appeal from Harrison. Tried below before the Hon. J. B. Williamson.

This unfortunate appellant was convicted under three separate indictments for keeping a gaming table for the purpose of gaming, and was mulet in a fine of twenty-five dollars for each conviction.

It not appearing that he profited in any respect, he naturally appealed.

Two of the indictments did not designate any particular kind of table or game; but the third was more explicit, and introduces us to the intellectual and popular pastime of “pigeon-hole.” For the benefit of such members of the bar, if such there be, as are uninitiated into the science of “pigeonhole,” it is deemed well to give here a description of the game, which was presented to the jury by a witness in these cases, who would make a fortune in patent office practice at Washington, framing “specifications” of strange inventions.

The witness testified that the defendant kept in the back room of his retailing establishment “a table resembling a billiard table, the difference being that at one end of the table the cushioning was elevated against a wall of wooden structure, higher than at the other end or either side; that this wall was perforated with holes from one side of the table to the other; that these holes resembled pigeon holes, and were on a level with the face of the table, and over each of them was placed a number or figure, the numbers being promiscuously distributed, and running from one to twenty. The table was played on by using balls and a cue or stick, with which the balls (somewhat smaller than billiard balls) were struck against each other, the object being to make one ball drive another into some of the holes, the number over the hole into which the ball is so driven being the amount or number the player counts in the game by that stroke. This, by the rules of the game, entitles the player to another stroke, and so on until he fails to hole a ball, and thus fails to make a count; upon which event the next player takes the cue, and so on until one hundred, or other agreed number, is obtained by all the players save one, who by that consummation is determined to be the party beaten. But sometimes this programme is reversed, and the first player who attains the number agreed upon is the losing party, the struggle in this case being to get the fewest balls into the holes, and them into the holes indicating the smallest numbers. The table is called a pigeon-hole table, and the game ‘pigeon-holes.’ 'DD'

While the testimony fully proved the assiduity with which the habitues of Wolz's grocery cultivated this charming pastime, yet it also established the exemplary fact that they were animated solely by a desire to excel, or some other ennobling motive, and not by the lust for lucre. In fact, the appellant allowed no betting at his pigeon-hole table, and on one occasion broke up a most exciting contest and impounded the balls to frustrate an incipient bet.

But despite this feature in the case, the court below instructed the jury that if the defendant “kept or exhibited a table for the purpose of gaming, or for the purpose of playing a game called pigeon-hole,” they must find him guilty; from which it is apparent that the court a quo adjudged pigeon-hole to be gaming per se in rerum natura.

The defendant's counsel, with the characteristic contumacy of his kind, took a different view of the matter, and postulated the following propositions to be presented to the jury as predicates for their verdict:

First. That the fact that the defendant kept or exhibited a table for the purpose of gaming, can only be proved by evidence that at the time and place such keeping or exhibiting is charged to have occurred, betting was done at such table.

Second. It is no offense against the law for a man to own a gaming table, and such table can only be said to be kept or exhibited for the purpose of gaming when there is betting at it, or it is kept or exhibited for that purpose.

Third. That to constitute a keeping or exhibiting a table for the purpose of gaming, it must be proved to have been kept or exhibited for the purpose of obtaining betters.

These instructions were refused, and exceptions were duly reserved.

In the first of the three cases, the jury returned into court with the following verdict: “We, the jury, find the defendant not guilty as charged in the indictment of keeping a gaming table; but do find defendant guilty of keeping a table for the purpose of playing pigeon-hole, and assess the fine at twenty-five dollars.” The court refused to receive this verdict, and sent the jury back, with verbal instructions as to the form of their verdict. They soon returned with the same verdict, amended with the insertion of the words “a game called” immediately before the...