Wright v. State

• Decision Date: 17 December 1919
• Docket Number: (No. 5494.)
• Citation: 217 S.W. 152
• Parties: WRIGHT v. STATE.
• Court: Texas Court of Criminal Appeals

217 S.W. 152

WRIGHT v. STATE.

(No. 5494.)

Court of Criminal Appeals of Texas.

December 17, 1919.

Appeal from Hill County Court; R. T. Burns, Judge.

J. H. Wright was convicted of permitting a minor to play pool and billiards in his billiard hall, and he appeals. Reversed, and prosecution ordered dismissed.

Dupree & Crenshaw, of Hillsboro, for appellant.

C. M. Cureton, Atty. Gen., and W. J. Townsend, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for permitting a minor to play pool or billiards in his billiard hall.

The evidence shows that the minor played a game in appellant's pool or billiard hall; that the minor was about 20 years of age; that appellant did not have the consent of the parents of the boy that he might play in such billiard or pool hall. The evidence does not show and is silent as to the fact that appellant was present when the boy played in the pool hall, or that he had any knowledge of it.

The state cites us to Rainbolt v. State, 49 Tex. Cr. R. 427, 93 S. W. 737, to support the conviction. In that case the evidence shows that the playing was in Rainbolt's place of business with his knowledge and consent. In Stark v. State, 71 Tex. Cr. R. 560, 160 S. W. 454, the minor played with Stark's knowledge and consent, and he accepted pay from the minor for playing the games. Those cases do not support the contention of the state.

The appellant's contention is that in order to make him responsible he must have known the minor played and permitted the boy to play the game. This contention is supported by Brown v. State, 49 Tex. Cr. R. 419, 93 S. W. 723; Stuart v. State, 60 S. W. 554. The state's evidence is not sufficient to show that the minor played the game with the permission or even with the knowledge of appellant. Why this was not shown is not explained in the record. The boy testified and could have known if appellant was present and knew that he was playing the game, and facts could have been adduced that would put appellant present. If appellant was not present and the boy played the game in his absence without his knowledge or consent, this could not be held to be by his permission.

There is a question suggested why the indictment is invalid. The record in this connection briefly shows that the grand jury, with the permission of the court, took a recess from the 17th of January to the 17th of February. In the meantime, on January 23d, the court reconvened the grand jury. Ten of the number only responded to the call. The court instructed the sheriff to summon other citizens to take the place of the two absent grand jurymen. This was done, and they were impaneled with the grand jury, and that body thus constituted returned the bill of indictment herein. It is shown that they participated in the action of the grand jury and were present and acted as such grand jurymen and were a constituent part of the grand jury in finding the indictment. This identical question was decided in Ex parte Love, 49 Tex. Cr. R. 475, 93 S. W. 551. The matter there was pretty thoroughly discussed and the decisions and the law quoted and cited. It was there said:

"This seems to be the well-settled rule by the decisions of this court, and it is laid down that neither the grand jury nor the court can excuse a member of the grand jury after it has been legally organized, and the power of the district court is limited to a discharge of the entire grand jury. It would follow, therefore, that the action of the court in excusing Hatchett was a nullity; that he was still a member of the grand jury; and it would further follow that the action of the court was equally invalid in undertaking to place Bagley on the grand jury. Bagley in no sense constituted a grand jury man, and was not authorized to sit with the grand...