Faucett v. State , 46 Tex. Crim. 113 ( 1904 )

Appellant was convicted of exhibiting a banking game, for the purpose of gaming, and his punishment assessed at a fine of $25 and ten days confinement in the county jail; hence this appeal.

Appellant contends that the proof shows that this was an ordinary game of craps played with dice, and was at a private residence, and was exempt from punishment under article 388, Penal Code, and he further contends that under said article, although it was a gaming table or bank, yet being played with dice and at a private residence, it is exempt. In answer to the first proposition, we would observe, that an examination of the evidence discloses that this was not an ordinary game of craps, or what appellant terms "a head and head game." Unquestionably according to the State's evidence it was a banking game; that is, a game of one against the many. Appellant sat behind the crap table, and took all bets of outsiders; and this is scarcely denied by appellant in his testimony. He admits a great number of persons came there and played at the game; he could not name them all. He shows that he sat behind the crap table, and that ordinarily he took all the bets of those who played on the outside. As to the particular game with Beck and Ephraim, on which it seems this prosecution is predicated, he bet against the two. He claims, however, that because he threw the dice alternately with the others, that this changed the feature of the game, as a banking game, to that of a "head to head game." We do not understand that any particular method of playing the game would serve to change it from a banking game to a simple game of craps with dice, where the principle on which the game was conducted was one against the many. This case comes within the principle laid down in Stearnes v. State, 21 Tex. 692, and is in its features precisely like the case of Bell v. State, 32 Tex.Crim. Rep., except, in that case, the parties did not alternate in throwing the dice — the exhibitor not throwing at all. But, as we have seen, that makes no difference where the principle of the game is the exhibitor against the outsiders, or one against the many. See Shaw v. State, 35 Tex.Crim. Rep..

As to the second proposition, we do not believe a banking or table game is excluded under article 388, Penal Code, when the same is played with dice at a private residence. In our opinion said article only refers to an ordinary game of craps played with dice; that is "a head and head game." It will be observed that said article 388 does not in terms relieve the exhibitor of banking or table games from indictment or punishment, but relieves any person who shall bet or wager at the enumerated games; among others, mentioning table or bank games. So that, even if the statute excludes one who bets at such a game, it does not excuse the exhibitor of a banking or table game; and under the evidence, as we have seen, appellant being an exhibitor, would not come within the exceptions of the statute. It is not necessary here for us to hold, if a table or banking game played with dice is exhibited illegally at a private residence, which we hold to be the case here, that one who bets at such game is not included; or rather that he is not amenable to the statute as coming within the exception. But we do hold that the exhibitor of a banking or table game is not included within any exception of said article 388. It is not necessary to discuss the authorities relied on by appellant, as they are not applicable.

There being no error in the record, the judgment is affirmed.

Affirmed.

[Motion for rehearing overruled without written opinion. — Reporter.]