Irwin v. State

441 S.W.2d 203, 1968 Tex. Crim. App. LEXIS 981

• Court: Court of Criminal Appeals of Texas
• Decided: May 15, 1968
• Docket: 41234
• Status: Published

Opinions

OPINION

BELCHER, Judge.

The conviction is for keeping a policy game; the punishment, two years.

Ground of error No. 4 is that the trial court reversibly erred in failing to suppress evidence obtained under the alleged search warrant which the appellant contends was illegally issued and is invalid.

The affidavit for the search warrant and the warrant exhibited to the judge are not shown in the transcript of the evidence, and do not appear among the exhibits in the case. Appellant attached to his motion to suppress evidence a purported copy of an affidavit and warrant. Such instruments cannot be considered in reviewing the ground of error presented. Doby v. State, Tex.Cr.App., 383 S.W.2d 418. For the reason pointed out, ground of error No. 4 does not reflect error.

In ground of error No. 1 the appellant contends that the trial court reversibly erred in failing to charge the jury upon the law of extraneous offenses in that, it did not instruct the jury not to consider such extraneous offenses unless they believed they had been proven beyond a reasonable doubt.

Omitting the formal parts, the indictment alleges that the appellant: “On or about the 7th day of February, A. D. 1965, * * did then and there unlawfully keep and exhibit for the purpose of gaming, a policy game.”

The testimony of the state reveals that Texas Rangers Rundell and Rogers together with other officers found the appellant at home when they went to his residence which was located in a rural area in Polk County, on Sunday, February 7, 1965, shortly after Russell Bond, bookkeeper for T and L Policy Company, had arrived; that said company was owned and operated by the appellant; that in appellant’s house the officers found a tan suit case (state’s exhibit No. 2), bundles of tear out sheets containing plays for several previous days, over $13,000 in money, hit slips, “squirrel cage,” and other items of policy paraphernalia; that a large number of the hit slips had been used on at least eight different days before February 7, 1965; and also other slips which could be used in the future. The evidence further shows that these articles were adaptable to and could be or had been used in the operation of a policy game.

Texas Ranger Rundell testified on direct examination, in part, as follows:

“Q (State’s Attorney, continuing): I will ask you this: When was the last time that you had an occasion to have a conversation with the Defendant, Sherman Irwin?

“A Well—

“Q I will ask you whether or not during the year of 1966 in or about the month of February or March you had occasion to talk to the Defendant, Sherman T. Irwin?

“A I did.

“Q Where was that?

“A One time it was at the Ben Milam Hotel in Houston, Texas, and the other time was on the parking lot of the Hovas Furniture Company, there in Houston, Tras.

“Q What was the nature of the conversation as relating to whether or not Mr. Irwin was engaged in any sort of a business at that time?

“Appellant’s Attorney: We object to that, your Honor, on the basis that first of all, it is too remote. Second, he was not advised of his rights and any statement he would have made under those circumstances would be inadmissible.

“The Court: Overruled.

“Appellant’s Attorney: Note our exception.

“A (The Witness, continuing): He stated to myself and my partner that he had been operating a policy game for over thirty years.

“Q Would that be over the past thirty years ?

“A Yes, sir.

“Q Did he tell you under what name he operated?

“A He stated he first opened up under the name, I believe, of the G. and W. and then later on it was closed down and he opened up under the T. and L., which he had been operating since.

“Q That conversation took place in February or March of 1966?

“A Yes, sir; it did.

“Q All right, and that occurred there in the City of Houston?

“A Yes, sir.

“Q At such time he was not under arrest?

“A No, sir; he was not.

“Q All right; had you met him at his request or at your request?

“A At his request.

“Q And the statements he made to you there were voluntarily made by him ?

“A Yes, sir.

“Q During the course of your conversation ?

“A Yes, sir.”

The state called four witnesses: Herman Munson, the lessor of the premises where the appellant resided; Texas Rangers Rundell and Driskell; and Melvin Hill, an employee of the appellant.

The appellant did not testify or offer any testimony in his behalf.

Melvin Hill testified that he was employed by the appellant from June 18, 1963, to June, 1966, and was working for him in January and February, 1965; that the appellant during this time owned and operated a policy game under the name of T and L Company, and that he worked for him as a manager or field man; that he had ten or eleven writers working under him taking bets on numbers; that he collected the money from the writers who had accepted bets on T and L policy game and delivered it to R. I. Bond, who began working as a bookkeeper for the appellant in June, 1964, in the operation of T and L Company, and Bond gave him the money to give the writers to pay the winners; that sometime about January, 1965, he accompanied Bond in his camper truck to appellant’s residence; that on Sunday, January 31, 1965, Bond went with him in his (Hill’s) car from Dickinson, Texas, to the appellant’s residence in Polk County, Texas, and that they took a brown suit case (state’s exhibit No. 2) with them which was very heavy; that there were writers, players and pickup men in Galveston County, and that he had $750 in money for the purpose of operating a policy game when he was arrested February 8, 1965 in Galveston County.

The series of segregated acts and the material in evidence, taken together, are by their nature a connected course of operation which go to make up and comprise the keeping of a policy game, and when they are considered along with the statements of the appellant in February or March, 1966, that he had been operating a policy game for over the past thirty years, it is concluded that the evidence is sufficient to support the conviction of keeping for the purpose of gaming, a policy game, in Polk County, Texas. Griffey v. State, 170 Tex.Cr.R. 577, 342 S.W. 2d 582. And further, that such acts and material are not extra, beyond, or foreign to the offense of keeping a policy game, and that it was not necessary to apply the burden of proof to each of the acts which could be considered on the trial for such offense. Ground of error No. -1 is overruled.

Ground of error No. 2 is that the trial court reversibly erred in admitting testimony that the appellant had the largest policy game in operation.

The testimony of Ranger Driskell reflects that he was experienced in the organization, handling and operation of policy games, and that there were different size games; that since June 18, 1963, he had been familiar with the operation of the T and L policy game (appellant’s), and also, the operation of other policy games during that time and that in his opinion the T and L policy game was the largest policy game in operation.

In light of the above testimony, the nature and extent of the other evidence, and the statements of the appellant that he had been operating a policy game over the past thirty years, it is concluded that no reversible error is shown.

Error is urged on the ground that the trial court failed to charge upon the law of principals.

The summary of the evidence herein is sufficient to show that the refusal to so charge was not error.

The judgment is affirmed.