Grimes v. State

327 S.W.2d 583, 168 Tex. Crim. 341, 1959 Tex. Crim. App. LEXIS 2555

• Court: Court of Criminal Appeals of Texas
• Decided: April 8, 1959
• Docket: 30601
• Status: Published

Opinions

MORRISON, Presiding Judge.

These three appellants were tried jointly, and each convicted of the offense of keeping and exhibiting a gaming table or bank; Grimes and Staggner were assessed a punishment of three years each, and Davis’ punishment was assessed at two years.

Rangers, a liquor control officer, and deputy sheriffs made a raid for illicit alcoholic beverages and found a dice game in progress in an unfurnished tenant house on the farm of one Elliott in Hale County. There were some nine or ten players in the game, eight of whom testified for the state in this prosecution. The officers found the players around a table approximately four feet wide and six feet long covered with a green cloth on which were marked lines, numbers and letters, which one of the rangers described as a “dice layout.” On the table were a pair of dice and a dice stick, and in front of appellant Staggner was a pile of money, some of which was in its original wrappers as it had come from the bank and which when counted was shown to amount to $2660. The other players had negligible sums before them.

In order to show that the appellants were guilty of the offense charged, the state relied upon the testimony of the players, who were arrested and plead guilty to the offense of gambling.

It is sufficient, we think, to say that Staggner and Davis were shown to have been busily engaged in the operation of a professional dice game for some time prior to the night of their arrest, while none of the witnesses had ever seen the appellant Grimes on the premises prior to the night of the raid. In applying the law to the facts, the court instructed the jury, over Grimes’ objection, that they might find him guilty if they found that he kept a gaming table or bank. While the evidence, viewed in the light most favorable to the state, might be sufficient to show that Grimes was guilty of exhibiting a game on the night charged in the indictment, it cannot be held to be sufficient to show that he kept the same. The learned trial court evidently overlooked the well-established rule that “there may be two distinct offenses connected with keeping and exhibiting a gaming table or bank: one may be guilty of keeping and not of exhibiting, or vice versa. Keeping is an offense continuous in nature, while exhibiting is not continuous, each act of exhibiting constituting a separate offense.” 20-B Texas Juris., sec. 52, p. 105.

As the case was submitted to the jury, it was authorized to consider, in determining Grimes’ guilt, the evidence that Stag-gner and Davis had been in business and inviting customers to come to the dice game for some time.

It is insisted by Grimes that there is no evidence sufficient to show that he was the keeper of the game. Grimes’ guilt therefore depended upon whether he exhibited the game as charged in the indictment. Under such circumstances, we have concluded that the trial court should have restricted Grimes’ guilt to exhibiting of the game and, not having done so, authorized Grimes’ conviction for the offense of keeping a game, which the evidence did not support. Moreover, Grimes was also entitled, in connection with the above, to have his guilt restricted to the particular time or transaction which showed or tended to show that he was guilty of exhibiting the game at this particular time.

The judgment as to Grimes is reversed, and the cause is remanded; the judgments as to Staggner and Davis are affirmed.