Renfro v. State

The sole ground of appellant's contention in his motion for rehearing is, that under the statute (art. 563, P.C.), it is not made an offense to go into and remain in any place where a game with dice is being played unless such place is a gambling house or is commonly resorted to for gaming. He cites and relies upon Walters v. State, 58 Tex.Crim. Rep.. The statutes applicable and prescribing this offense were cited and given in the original opinion. It is unnecessary to repeat them. As stated and shown by authorities there cited, it is an offense for any person to bet at any game played with dice anywhere, whether in a private residence occupied by a family or not, and article 563 makes it an offense for any person to remain in any place where any such game with dice is played. The Walters case is not in point herein. In that case the charge was that appellant remained in Matilda Hagen's house, where a game of cards was being played by certain persons. The uncontradicted proof in that case was that said house was the private residence of the woman alleged and that it was not commonly resorted to for the purpose of gaming, that one game being the only game ever played therein so far as the testimony showed. It is not an offense to play cards and gamble in a game therewith at any private residence occupied by a family unless such private residence is commonly resorted to for that purpose.

In Purvis v. State, 62 Tex.Crim. Rep., this court expressly overruled the cases of Singleton v. State, 53 Tex. Crim. 625, and Purvis v. State, 52 Tex.Crim. Rep., wherein it was held by Judge Ramsey that it was an offense to bet at a game of cards played at a private residence even where not commonly resorted to for that purpose, this court holding that it was no offense under the statute to play a game with cards at a private residence occupied by a family and bet thereon, unless such private residence was commonly resorted to for that purpose.

What Judge Ramsey said was meant by "any place" in said article 563 in said Walters case, is restricted to what was being decided in that case, that is, as to a game played with cards at a private residence occupied by a family which is not commonly resorted to for that purpose. It is not applicable to any place where a game with dice is played and betting thereon. It was obiter dictum as to any place where gambling is done with dice.

The motion is overruled.

Overruled.