Jefferson v. State

364 S.W.2d 227, 1962 Tex. Crim. App. LEXIS 847

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1962
• Docket: 34845
• Status: Published

Opinions

MORRISON, Judge.

The offense is keeping and exhibiting a policy game; the punishment, two years in the penitentiary against each appellant.

Officer Driskell of the Houston vice squad testified that on the day in question, while armed with a search warrant, he and his fellow officer entered a certain dwelling house in the city and there found the two appellants seated at a table, and spread out before them on the table and in a box on the floor between them he saw certain policy books, slips and a sum of money. Also in the room, but not seated at the table, were eight colored men, a Latin American, and a colored woman. He stated that appellants were charged with the felony offense of keeping and exhibiting a policy game, while a majority of the others present were charged with possession of policy paraphernalia. The witness qualified as an expert on policy and stated that only the “writers,” such as appellants, ever exhibited the game to the public.

The written confession of appellant Johnson was introduced 'without objection in which she stated that she and appellant Jefferson were writing policy for three different companies on the day of the raid and-that at such time she had written eight or ten dollars in each of two policy books and that she had paid out approximately two dollars to those who had won on the previous day’s drawing.

Appellant Jefferson, testifying in her own behalf, admitted that she was writing policy on the day of the raid but stated that she was working on a salary for a regular writer who had hired her to help him. She stated that it was her function as a writer to take bets and pay off wins up to ten dollars. She explained that the “field man” in the game paid off larger wins. She also testified that appellant Johnson was seated at the table with her and was writing for another policy company.

It is appellants’ primary contention that the evidence is insufficient to support this conviction as a felony under Section 1 of Article 642c, Vernon’s Ann.P.C. They readily admit their guilt of the misdemean- or offense of accepting bets upon a policy game, denounced by Section 2 of said Act. They recognize the holding of this Court in Sinclair et al. v. State, 159 Tex.Cr.R. 35, 261 S.W.2d 167, but contend, and we quote from their brief, as follows:

“That the application of Art. 642c of the Texas Penal Code and its interpretation of the present decisions of this

Court is left up to the arresting officer of the District Attorney’s Office and/or the Grand Jury. The interpretation of what offenses are felonies and what offenses are misdemeanors is entirely left up to the prosecuting attorney and/or the Grand Jury. Said officials may either file a felony or a misdemeanor on the same evidence.”

The rule is well settled that "the fact that testimony relied upon by the State to show the offense charged against an accused also develops facts which constitute another independent crime does not prevent a conviction for the offense on trial.” Lewis v. State, Tex.Cr.App., 346 S.W.2d 608, and Fuentes v. State, 163 Tex.Cr.R. 410, 292 S.W.2d 117.

Appellant next contends that the offense' denounced in Section 2 of said Act is not a lesser included offense of the felony offense denounced by Section 1 and asserts that the court erred in failing to instruct the jury to acquit them if they found that they were only guilty of the misdemeanor offense denounced by Section 2. In response to such objection, the court amended his charge and instructed the jury that if they did not find the defendants guilty of keeping and exhibiting a policy game they should next consider whether or not the defendants were guilty of a misdemeanor as denounced by Section 2 and set forth the requisite elements thereof.

Appellants point to the fact that in Griffey v. State, Tex.Cr.App., 342 S.W.2d 582, we declined to pass upon the question of whether the possession of a policy slip is a lesser included offense in an indictment charging the keeping and exhibiting a policy game. We see no occasion to do so at this time because appellants were shown to be in possession of policy books and actually engaged in writing policy plays for the company.

We find the evidence sufficient to support the conviction for exhibiting for the purpose of gaming a policy game,

Finding no reversible error, the judgment of the trial court is affirmed.