Robinson v. State (163 S.W. 434, 1914)

DAVIDSON, J.

Appellant was convicted of betting at a game of cards in a private residence occupied by a family and commonly resorted to for the purpose of gaming. '

It is sufficient to dispose of this case on the facts. This indictment was drawn under article 548 of the Revised Penal Code. The evidence fails to show that the house-where the game was played was a private residence; it further fails to show that it was commonly resorted to for the purpose of gaming. It is necessary to prove these matters in order to constitute a violation of the law under this prosecution.'

The facts show, if there was any betting done, which is a controverted issue so-far as appellant is concerned, it was a banking game exhibited, and not a game of cards, as charged in the indictment. This would be a variance under the authorities. See Chancellor v. State, 52 Tex. Cr. R. 464, 107 S. W. 823; Vinson v. State, 58 Tex. Cr. R. 47, 124 S. W. 652; Arredondo v. State, 58 Tex. Cr. R. 145, 124 S. W. 930; Averheart v. State, 30 Tex. App. 651, 18 S. W. 416; Shaw v. State, 33 S. W. 1078.

The judgment is reversed, and the cause remanded.