
    Jordan Waggoner v. The State.
    No. 3365.
    Decided January 31, 1906.
    Gaming—Private Residence—Banking Game.
    Where upon trial for betting at a game, for permitting a game to be played upon defendant’s premises then and there a public place, etc.; where the evidence showed that defendant occupied the house where the gaming was alleged to have taken place as a private residence, and that a good deal of playing with dice took place there, and that the game was a banking game, a conviction could not be sustained, as he was not charged with exhibiting a banking game.
    Appeal from the County Court of Cooke. Tried below before Hon. J. M. Wright.
    Appeal from a conviction of gaming; penalty, a fine of $25.
    The opinion states the case.
    
      Stuart & Bell, for appellant.
    
      Howard Martin, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

The indictment contains three counts; the first charging appellant with betting at game played with dice, not then and there being played at a private residence; and the second for permitting a game with dice to be played upon his premises or premises then and there under his control, being a public place, to wit: a place where persons resort for the purpose of gaming; and third, did unlawfully bet at a game played with dice, called craps, said game then and there being bet at by said Waggoner at a public place to wit: at a place where people resort for the purpose of gaming. It was tried before the court without a jury. Judgment was entered against him for $25. The evidence shows that appellant had rented the house and was living in it as a private residence. The facts further show that there was a good deal of playing in the house with dice, and cogently show that the game was a banking game. He was not charged with exhibiting a banking game, so that passes out of the case, and a conviction could not be had on that theory. As the evidence shows that the house. was a private residence he could not be punished for playing dice, as it is not a violation of the law to play games of dice at a private residence under our statute. We deem it unnecessary to go into a discussion of the matter as the record is presented as above stated. The judgment is reversed and the cause remanded.

Reversed and remanded. .  