HARPER, Judge.
—In this case the appellant was indicted, charged with the offense of unlawfully and knowingly permitting property and premises then and there situated, and then and there under the control of him, the said Bunk Austin, to be used as á place to bet and wager and gamble with cards, dice and dominoes. "Upon a trial appellant was convicted and sentenced to two years confinement in the penitentiary.
The judge in his charge to the jury limited the issues to whether or not appellant rented a house and premises, and took actual possession and control of same, and while under his control knowingly permitted said house to be used as a place to bet and wager, and to gamble on games played with dice or cards.
The only assignment of error is that the verdict of the jury is contrary to the law and evidence, and under this assignment the contention is made that the Act of the Thirty-first Legislature, page 111, entitled “An Act to better define and punish vagrancy, prescribing the rules of procedure in the prosecution of vagrancy and fixing a punishment for vagrancy and repealing all laws and parts of laws in conflict herewith and declaring an emergency,” in which said Act, in subdivision (K) of sec. 1, every keeper of a house of gambling or gaming is defined as a vagrant, repeals in part at least, if not wholly, the Act of the Thirtieth Legislature, page 107, entitled “An Act to amend article 388 of the Penal Code of the State of Texas, so as to.make it unlawful to bet or wager at any gaming table or bank or pigeon-hole or jenny-lind table, or nine or tenpin alley such as are mentioned in the six preceding articles, or to bet or wager any money or other thing of value at any of the following games, viz.: Poker-dice, jack-pot, high-dice, high-die, low-dice, low-die, dominoes, eucher with dominoes, poker with dominoes, sett with dominoes, muggins, crack-loo, crack-or-loo, or at any game of any character whatever that
can be played with dice or dominoes, or at any table, bank or alley, by whatsoever name the same may be known or whether named, or not, or matching for money or anything of value; also, by adding to said Code, articles 388a, 388b, 388c, 388d, 388e, 388f, 388g, 388h, 388i, 388j, 388k, 388l, 388m, and 388n, making it a felony punishable by confinement in the penitentiary for any person directly, through an agent, or as agent for another^ to keep any house or place to gamble with cards, dice, dominoes or upon anything whatever, or where people resort for such purpose or to exhibit for the purpose of gaming, any table, bank, alley, machine or device whatsoever; or to rent or keep any such place, table, bank, alley, machine or device whatsoever for the purpose of gaming; providing for the search for, and the seizure of any gambling device, equipment or paraphernalia and its destruction; and generally to suppress gambling; repealing all laws in conflict herewith, and declaring an emergency,” in which said Act there is adopted article 388b, as follows:
“If any person shall rent to another or shall keep or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes or to keep or exhibit for the purpose of gaming any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever or shall knowingly permit property or premises of which he is owner, or which is under his control to be so used, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not, and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is 'resorted to for the purpose of gaming or betting.”
It will be noticed that appellant was tried and convicted of the offense of “knowingly permitting property and premises under his control to be used as a place to bet and wager, and to gamble with cards or dice.”
The clause under the vagrancy Act does not repeal this part of the Act of the Thirtieth Legislature, even if it should be held that it repeals any part thereof, a discussion of which is pretermitted at this time, as it is not necessary, nor involved in a disposition of this case. However, we might say at this time that we do not agree that the Act defining vagrancy repeals any part of the Act of the Thirtieth Legislature, and will when the question arises in a proper case present our views. There is no provision in the Act of the Thirty-first Legislature relating to vagrancy that refers to the offence of permitting a house under one’s control to be used as a gambling house. In the case of Jesse v. De Shong, 105 S. W. Rep., 1011, the court says:
“To constitute a repeal by implication, there must be such repugnance or conflict between the positive and material provisions of the different Acts that they can not stand together (citing Hunter v. City of Memphis, 93 Tenn., 571.) Further, a repeal by implication must be by necessary implication. ‘It is not sufficient to establish that the subsequent law covers some or even all of the cases provided for; for they may be merely affirmative or cumulative or auxiliary; but there must be a positive repugnance between the provisions of the new law and those of the old law, and even then the old law is repealed by implication only pro tanto to the extent of the repug- - nance’ ” (citing Words & Phrases, 6103; Hornaday v. State, 63 Kan., 499; Gilbert v. Craddock, 67 Kan., 346).
In discussing this question the United States Supreme Court, in the case of Daviess v. Fairbairn, 3 How., 636, says: “As having a strong and decided bearing on this view we refer to Wood v. United States (16 Pet., 342.) In that case the court says: ‘The question then arises whether-the 66th section ■ of the Act of 1879, ch. 128, has been repealed or whether it remains in full force. That it has not been expressly, or by direct terms repealed, is admitted; and the question resolves itself into a more narrow inquiry, whether it has been repealed by necessary implication. We say necessary, for it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnance between the provisions of the new laws and those of the old; and even then the old law is repealed by implication anly
pro tanto
to the extent of the repugnance.’”
Repeal by implication extends only to Acts on the same subject and to the parts of such Acts which are clearly inconsistent and irreconcilably conflicting with the provisions of the later Act, and only to the extent of the conflicting provisions. People v. Durick, 20 Cal., 94; State v. Grady, 34 Conn., 118; Elrod v. Gilliland, 27 Ga., 467; Cyc., vol. 26, p. 719; Geisinger v. Beyl, 44 Wis., 258.
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HARPER, Judge.
—In this case the appellant was indicted, charged with the offense of unlawfully and knowingly permitting property and premises then and there situated, and then and there under the control of him, the said Bunk Austin, to be used as á place to bet and wager and gamble with cards, dice and dominoes. "Upon a trial appellant was convicted and sentenced to two years confinement in the penitentiary.
The judge in his charge to the jury limited the issues to whether or not appellant rented a house and premises, and took actual possession and control of same, and while under his control knowingly permitted said house to be used as a place to bet and wager, and to gamble on games played with dice or cards.
The only assignment of error is that the verdict of the jury is contrary to the law and evidence, and under this assignment the contention is made that the Act of the Thirty-first Legislature, page 111, entitled “An Act to better define and punish vagrancy, prescribing the rules of procedure in the prosecution of vagrancy and fixing a punishment for vagrancy and repealing all laws and parts of laws in conflict herewith and declaring an emergency,” in which said Act, in subdivision (K) of sec. 1, every keeper of a house of gambling or gaming is defined as a vagrant, repeals in part at least, if not wholly, the Act of the Thirtieth Legislature, page 107, entitled “An Act to amend article 388 of the Penal Code of the State of Texas, so as to.make it unlawful to bet or wager at any gaming table or bank or pigeon-hole or jenny-lind table, or nine or tenpin alley such as are mentioned in the six preceding articles, or to bet or wager any money or other thing of value at any of the following games, viz.: Poker-dice, jack-pot, high-dice, high-die, low-dice, low-die, dominoes, eucher with dominoes, poker with dominoes, sett with dominoes, muggins, crack-loo, crack-or-loo, or at any game of any character whatever that
can be played with dice or dominoes, or at any table, bank or alley, by whatsoever name the same may be known or whether named, or not, or matching for money or anything of value; also, by adding to said Code, articles 388a, 388b, 388c, 388d, 388e, 388f, 388g, 388h, 388i, 388j, 388k, 388l, 388m, and 388n, making it a felony punishable by confinement in the penitentiary for any person directly, through an agent, or as agent for another^ to keep any house or place to gamble with cards, dice, dominoes or upon anything whatever, or where people resort for such purpose or to exhibit for the purpose of gaming, any table, bank, alley, machine or device whatsoever; or to rent or keep any such place, table, bank, alley, machine or device whatsoever for the purpose of gaming; providing for the search for, and the seizure of any gambling device, equipment or paraphernalia and its destruction; and generally to suppress gambling; repealing all laws in conflict herewith, and declaring an emergency,” in which said Act there is adopted article 388b, as follows:
“If any person shall rent to another or shall keep or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes or to keep or exhibit for the purpose of gaming any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever or shall knowingly permit property or premises of which he is owner, or which is under his control to be so used, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not, and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is 'resorted to for the purpose of gaming or betting.”
It will be noticed that appellant was tried and convicted of the offense of “knowingly permitting property and premises under his control to be used as a place to bet and wager, and to gamble with cards or dice.”
The clause under the vagrancy Act does not repeal this part of the Act of the Thirtieth Legislature, even if it should be held that it repeals any part thereof, a discussion of which is pretermitted at this time, as it is not necessary, nor involved in a disposition of this case. However, we might say at this time that we do not agree that the Act defining vagrancy repeals any part of the Act of the Thirtieth Legislature, and will when the question arises in a proper case present our views. There is no provision in the Act of the Thirty-first Legislature relating to vagrancy that refers to the offence of permitting a house under one’s control to be used as a gambling house. In the case of Jesse v. De Shong, 105 S. W. Rep., 1011, the court says:
“To constitute a repeal by implication, there must be such repugnance or conflict between the positive and material provisions of the different Acts that they can not stand together (citing Hunter v. City of Memphis, 93 Tenn., 571.) Further, a repeal by implication must be by necessary implication. ‘It is not sufficient to establish that the subsequent law covers some or even all of the cases provided for; for they may be merely affirmative or cumulative or auxiliary; but there must be a positive repugnance between the provisions of the new law and those of the old law, and even then the old law is repealed by implication only pro tanto to the extent of the repug- - nance’ ” (citing Words & Phrases, 6103; Hornaday v. State, 63 Kan., 499; Gilbert v. Craddock, 67 Kan., 346).
In discussing this question the United States Supreme Court, in the case of Daviess v. Fairbairn, 3 How., 636, says: “As having a strong and decided bearing on this view we refer to Wood v. United States (16 Pet., 342.) In that case the court says: ‘The question then arises whether-the 66th section ■ of the Act of 1879, ch. 128, has been repealed or whether it remains in full force. That it has not been expressly, or by direct terms repealed, is admitted; and the question resolves itself into a more narrow inquiry, whether it has been repealed by necessary implication. We say necessary, for it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnance between the provisions of the new laws and those of the old; and even then the old law is repealed by implication anly
pro tanto
to the extent of the repugnance.’”
Repeal by implication extends only to Acts on the same subject and to the parts of such Acts which are clearly inconsistent and irreconcilably conflicting with the provisions of the later Act, and only to the extent of the conflicting provisions. People v. Durick, 20 Cal., 94; State v. Grady, 34 Conn., 118; Elrod v. Gilliland, 27 Ga., 467; Cyc., vol. 26, p. 719; Geisinger v. Beyl, 44 Wis., 258.
In McLain’s Criminal Law, the author says: “Thus it is made an offense to keep a place for the illegal sale of intoxicating liquors, and declare the place or building where the liquor is sold or kept with the intent to sell a nuisance, and the offense of keeping such a place is distinct from that of illegally selling or illegally keeping for sale.” (See sec. 1248 and authorities there cited.)
We could cite numerous other authorities, but deem it unnecessary. There being no repugnancy in any part of the vagrant Act to that part of the Act of the Thirtieth Legislature under which appellant was convicted, we hold it did not repeal that provision of the Act of 1907, and as hereinbefore stated, we do not wish to be understood as agreeing that said Act repeals any part of the Act of the Thirtieth Legislature, but our holding is that it does not do so, and we will present our views in a case pending before the court in which the
question is presented. The Act of the Thirty-first Legislature, defining vagrancy, has the following proviso: “Provided the penalties herein named shall be cumulative and a conviction for any of the offenses herein named shall not be a bar to any other prosecution under any other criminal statute.” One Act has for its object the suppression of gambling, while the other has for its purpose the suppression of vagrancy.
The facts in the case show that appellant rented a dwelling-house for himself and his family, and they lived in it. He permitted many people to come there and gamble, and gambled with them. In fact, his residence was commonly resorted to for gaming and betting. The evidence does not show that he charged any fees, or that he superintended the gaming. When he played it was as one of the other persons engaged in the game. He had no paraphernalia such as is usually incident to a gambling-house. There was no “take-off,” and the gaming took place in the rooms in which the family lived, and he permittéd his friends and others to meet there for the purpose of gambling. This, as we understand it, did not constitute him the “keeper of a gambling-house,” but one who knowingly permitted premises under his control to be used as a place to which people resorted for the purpose of gambling, and this was the offense for which he was placed on trial and convicted.
The judgment is affirmed.
Affirmed.