Polly v. State , 33 Tex. Crim. 410 ( 1894 )

SIMKINS, Judge.

Appellant was convicted of keeping and exhibiting for the purpose of gaming a gaming table and bank, and his punishment was assessed at ten days in jail and $25 fine.

It is unnecessary to consider the many questions raised in this record. The case must be reversed for want of testimony to sustain it. The State sought to prove its charge by two witnesses, Sim Daniels and Frank KLessinger. But each of these witnesses swore on the stand that they did not remember to have seen defendant dealing faro at any time during the fall of 1892, the date charged. They each admitted that they had made a written statement to the county attorney, in his office, on February 10, 1893, “that they had seen defendant dealing faro in the gambling rooms over Vinson’s saloon all along during the fall of 1892,” and that they had signed and sworn to the statement, which was then produced by tbe county attorney, and banded witness, and that said statement was true, but they could not now (May, 1893) remember that they had ever seen defendant deal faro at the place named during the fall of 1892. A defendant can not be convicted on statements, except dying declarations, made in the absence of defendant, whether they be sworn to or not, and however true the statement might be. The witnesses having denied, however falsely, any recollection of seeing the offense committed, there was no testimony upon which the case could have been submitted to the jury, and the court should have instructed the jury to acquit defendant, and held the witnesses over, if satisfied of their guilt, to await the action of the grand jury on a charge of perjury.

Because the verdict is without evidence to support it, the judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.