Bowles v. State (150 S.W. 626, 1912)

PRENDERGAST, J.

By complaint and information appellant was charged with betting at a game played with dice called “craps” at the private residence of Charley Randall, which said private residence was commonly resorted to for the purpose of gaming. The jury fixed the lowest penalty.

Under the statute (P. C. art. 557) betting on any game played with dice is made an offense wherever played. The case was tried by the state on the theory that that part of the information charging that the private residence of Randall was commonly resorted to for the purpose of gaming was surplusage. On the part of the appellant it was tried on the theory that it took that to make the offense, and that, the allegation having been made, it was necessary to prove it.

The testimony, without question, was suffii-cient to justify the jury to convict if the said allegation could be treated as surplus-age, and did not have to be proved by the state in order to make out the offense. Without the last words in the information, “which said private residence was commonly resorted to for the purpose of gaming,” it properly charged an offense against appellant. These last words were, therefore, sur-plusage, and the state was correct in so treating them, and so was the charge of the court. Sheppard v. State, 1 Tex. App. 304; Warrington v. State, 1 Tex. App. 173; Ellis v. State, 59 Tex. Cr. R. 419, 128 S. W. 1125; Jordan v. State, 37 Tex. Cr. R. 222, 39 S. W. 110; Pittman v. State, 14 Tex. App. 576; Mayo v. State, 7 Tex. App. 346; Smith v. State, 7 Tex. App. 384; Cudd v. State, 28 Tex. App. 128, 12 S. W. 1010; Hammons v. State, 29 Tex. App. 448, 16 S. W. 99. The court, therefore, did not err in refusing to give appellant’s special charges, making it essential to the conviction that the state should prove that the said private residence was commonly resorted to for gaming. And appellant’s contention that as the evidence showed said Randall’s house was a private residence where his family resided, and even though not resorted. to commonly for gaming purposes, was no defense. The statute makes it an offense, as stated above, to bet anywhere on any game played with dice.

The appellant objected to the state’s witness Bud Gray testifying, because he had been convicted of a felony. The whole bill and the qualification thereof by the judge shows that, while he had been convicted of a felony, he had appealed his case, and, although the judgment had been affirmed, it was still pending on a motion for rehearing. Therefore the judgment was not final at the time he was offered as a witness and testified. He was therefore not an incompetent witness. P. C. art. 27, and cases cited thereunder; also article 788, C. C. P., subd. 3, and cases cited thereunder.

The judgment will be affirmed.