Davis v. State

238 S.W.2d 531, 156 Tex. Crim. 76, 1951 Tex. Crim. App. LEXIS 1483

• Court: Court of Criminal Appeals of Texas
• Decided: March 14, 1951
• Docket: No. 25193
• Status: Published

Opinions

BEAUCHAMP, Judge.

Appellant was assessed a fine of $500.00 and four months in jail for a violation of the gambling law described in Article 652-a, Vernon’s Ann. P. C.

The attack first made is on the indictment, charging that it was duplicitous and joins in the same count four separate offenses in that he placed bets upon four different football games. Nevertheless, the indictment describes but one offense. See Simmons v. State, 135 Tex. Cr. R. 425, 120 S.W. 2d 1061; and Odle v. State, 139 Texas Crim. Rep. 288, 139 S.W. 2d 595.

The facts disclose that a reporter for an Amarillo newspaper was assigned by his employer to go to the Roosevelt Bar and secure a picture, ostensibly for news service. His purpose and instructions went further, however, and may be considered an investigation of the gambling activities of the appellant, who was the keeper of the bar. From an employee at the bar the reporter secured a “parley card.” One side of this card reads as follows:

“(STATE’S EXHIBIT NO. ONE)

No. 371303

3 Teams 5 Points

4 Teams 10 Points

5 Teams 15 Points

6 Teams 25 Points

7 Teams 40 Points

8 Teams 60 Points

9 Teams 90 Points

10 Teams 150 Points

“9 OUT OF 10 20 POINTS

Encircle the Teams You Select — All of Which Must Win — Tie Loses

SINCE 1935

‘THE ORIGINAL’

RED AND GOLD

WEEKLY

FOOTBALL

SCHEDULES”

On the reverse side is the following:

“CIRCLE TEAMS CLEARLY GAMES MUST BE PLAYED

SATURDAY, SEPTEMBER 24, 1949

1 Wm. & Mary 2 Pittsburgh Even

3 U. C. L. A. 4 Iowa Even

5 Oregon St. 6 Utah Even

7 Penn St. 8 Villano va (Plus) 6

9 (Kansas) 10 Colorado 99 7

11 Rice 12 Clemson 99 7

13 Vanderbilt 14 Geo. Tech. 99 7

15 Kentucky 16 L. S. U. 99 7

17 Tex. A. & M. 18 Tex. Tech. 99 7

19 Tulane 20 Alabama 99 10

21 Northwestern 22 Purdue 99 12

23 Holy Cross 24 Georgetown 99 13

25 Wisconsin 26 Marquette 99 13

27 Michigan 28 (Mich. State) 99 13

29 North Car. 30 No. Car. St. 99 13

31 T. C. U. 32 (Okla. A & M.) 99 13

33 S. M. U. 34 Wake Forest 99 13

35 Virginia 36 Geo. Wash. 99 13

37 Stanford 38 Harvard 99 14

39 So. Cal. 40 Navy 99 14

41 Ohio State 42 Missouri 99 14

43 Minnesota 44 Washington 99 20

45 Baylor 46 (S. Carolina) 99 20

47 Tennessee 48 Miss St. 99 20

49 Oregon 50 Idaho 99 20

51 California 52 St. Mary’s 99 21

53 Illinois 54 Iowa State 99 27

55 Notre Dame 56 Indiana 99 27

57 Texas 58 Temple 99 33

(The names enclosed in parentheses in above Exhibit indicate those teams encircled by pencil on the original card Exhibit.)”

To the numbered card was attached a stub with corresponding number. The reporter carried the card to the office of the newspaper, marked four names in accordance with instructions, he then delivered the card to appellant stating: “I would like to place a bet on the football parley.” He tendered a dollar which was accepted by appellant, together with the card. Appellant tore the stub from the card and returned a portion to the witness.

In our opinion this was a completed bet, as shown by the foregoing evidence, regardless of the procedure which was to follow. The witness understood that he would receive $10.00 in the event he had correctly placed his bet on the four names. The appellant did not testify and made no denial of any fact which the witness stated, nor did he refute the implication testified to by the witness. The contention is here made by appellant that the evidence is insufficient to support the conviction in That it fails to show that a bet was made. We do not agree with this contention. For a discussion of the meaning of the terms “bet” and “wager”, in such case, see Odle v. State, 139 Tex. Crim. Rep. 288, 139 S.W. 2d 595.

In the absence of any contradiction of the understanding which the witness testified they had, we are of the opinion that the offense is sufficiently shown and the judgment of the trial court is accordingly affirmed.