Windsor v. State

79 S.W. 312, 46 Tex. Crim. 140, 1904 Tex. Crim. App. LEXIS 80

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1904
• Docket: No. 2945.
• Status: Published

Opinion

DAVIDSON, Presiding Judge.

The information charges that appellant “did then and there unlawfully engage and assist in taking and accepting from Max Price a bet of ten dolors on a horse race to be thereafter run on the tenth day of December, 1903, in the State of Louisiana,” etc. The facts are that “Max Price desired to make a bet on a horse race to be run in the city of New Orleans, Stare of Louisiana, and being then and there informed by defendant, Harry Windsor, of the various odds offered at the race track on the said day on the various horses entered in a certain race to be run on the race track in the city of New Orleans and State of Louisiana, proposed to the said Harry Windsor, defendant, that he, the said Max Price, would pay to him, the said Harry Windsor, a commission of $1 together with the expense of transmitting by telegraph to any parties beyond the State of Texas, the sum of $10 by the said Harry Windsor, defendant, as the agent for the said Max Price—but not the agent of Lee Mayer—to be offered upon . the horse Big Ben, that the said horse would win the race on the said date to be so run at the race track in the city of New Orleans and State of Louisiana, in which race the said horse was entered. That Lee Mayer . is engaged in the business of bookmaking and of taking and of accepting bets on horse races to be run on the various race tracks throughout the Hnited States; that the place of business of the said Lee Mayer is Hot Springs, State of Arkansas. That thereupon the said Harry Windsor, in Grayson County, Texas, did agree with the said Max Price to then and there, on the 10th day of December, accept and did accept from the said Max Price a deposit of $10, together with a commission of $1 and the expense of transmitting said $10 by telegraph to the said Lee Mayer, and in pursuance of said agreement, did on behalf of the said Max Price and for his account telegraph to the said Lee Mayer the sum of $10, and offered the same to the said Lee Mayer as a bet that the horse Big Ben would win the race to be run on the said day in the city of New Orleans and State of Louisiana, in which the said horse was then and there entered.” It is further agreed that the race was run as indicated, and that Lee Mayer accepted by telegraph message the bet sent him by appellant ; and that after the acceptance of said bet, the race was run. It was further agreed that the “odds” bet wrnre even; that is, $10 against $10; and that Lee Mayer accepted the bet on those terms.

This information is predicated upon section 1 of the Acts of the Legislature, 1903, page 68,- which reads as follows: “If any person shall engage or assist in pool selling, book making, taking or accepting any bet on any horse race, he shall be punished by a fine of not less than $200 nor more than $500 and imprisonment in the county jail for not less than thirty nor more than ninety days.” Sections 2 and 3 are not involved in this case. The information is clear and explicit, alleging that appellant engaged in taking and accepting a bet on a horse race, etc., and that this engaging in the taking and accepting the bet was from Max Price. He was not charged with pool selling or book making; nor was he charged with buying or wagering or making a bet on a horse race. It is agreed in the statement of facts that appellant was the agent of Max Price, and as his agent sent and tendered a bet to Lee Mayer in Hot Springs, Arkansas. It is further distinctly agreed that he was not the agent of Lee Mayer. Lee Mayer did not tender a bet to Max Price or to appellant. The tender or pifer of the bet was made by Harry Windsor for Max Price to Lee Mayer. In other words, it was an offer of Max Price through appellant to Lee Mayer in Arkansas to bet on the horse named Big Ben, to be run on a certain day in Hew Orleans. It may be conceded that there was a bet made between Max Price, through his agent, the appellant, with Lee Mayer in Arkansas. How, it is said that “a bet or wager is ordinarily an agreement between two or more that a sum of money, or some valuable thing, in contributing which all agree to take part, shall become the property of one or more of them on the happening in the future of an event at the present uncertain, or upon the ascertainment of a fact in dispute. The term is applied both to the contract of betting or wagering and to the thing or sum bet or wagered. 4 Am. and Eng. Enc. of Law, 2 ed., p. 5; Rich v. State, 38 Texas Crim. Rep., 199. “A bet is a wager, and the betting is complete when the offer to bet is accepted.” State v. Welch, 7 Port., 465; Rich v. State, supra. How, the facts show beyond any question that there was a bet made; that the tender of the bet was made by appellant for Price and accepted by Mayer, to whom it was tendered. In order to constitute the bet, there must be a tender or an offer to bet by one party and the acceptance by the other. In this case the offer was made by appellant as the agent of Price, and the acceptor was Mayer. The party who tenders the bet is not the party to accept the bet; it is the party to whom the tender is made who is the acceptor. So, under the facts, instead of appellant engaging in taking the bet or - accepting the bet, or assisting in taking or accepting a bet, he was the party tendering or offering the bet, and Mayer was the taker or acceptor. The agreed facts do not show a violation of this statute. Hot only so, but excludes that idea. In other words, it shows appellant was the party who offered and not the party who accepted the bet. The Legislature has not seen proper to include in this section those who offer or tender bets, but has confined it to those who engage in taking or accepting bets. It would seem from the wording of tlie statute that it is not a violation of the law to offer or tender a bet. The punishment is against the party accepting the bet or engaged in accepting or taking the bets. We have many statutes enacted along the same line. Our laws against the selling of intoxicants punishes the seller and not the purchaser. It will be notea appellant was not charged with making a bet. It may be that where the bet is offered or tendered and is accepted that that would be the consummated bet; or in other words, it would be making the bet. But appellant was not charged with making a bet, and that issue will not be discussed. It is not involved. Because the evidence does not show a violation of the statute, the judgment is reversed and the cause remanded.

Reversed and remanded.

Brooks, Judge, dissents.