
    ELLIS v. STATE.
    (No. 4156.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law &wkey;763, 764(1) — Gaming— Instruction — Weight of Evidence.
    In a prosecution for making bets or wagers, a charge that matching money or coin for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is'a bet or wager, provided said thing or things for which the matching is done is a thing of value, was not erroneous as on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dec. Dig. &wkey;763, 764(1).]
    2. Gaming <&wkey;71 — Wager—Definition.
    Matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a bet or wager, provided said thing or things for which the matching is done is a thing of value.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 166, 167; Dec. Dig. <&wkey;>71.]
    3. Criminal Law &wkey;>810 — “Bet”—“Wager” —Criminal Prosecution — Trial—Instruction.
    ' In a prosecution for making bets or wagers, a charge that matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a “bet” or “wager,” provided said thing or things for which the matching is done is a thing of value, was not in conflict with a charge that a “bet” or “wager” is the mutual agreement and tender of a1 gift of something of value, which is to belong to the one or the other of the contracting parties, according to the result of the trial of chance or skill, or both combined, and such agreement may be made by words, by words and acts, or by acts without words, but is merely supplementary thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1968; Dec. Dig. <S=810.
    For other definitions, see Words and Phrases, First and Second Series, Bet; Wager.]
    4. Criminal Law <&wkey;>1038(3), 1056(1) — Appeal and Error — Instruction in Misdemeanor Cases.
    In a misdemeanor case, unless exceptions are reserved to given charges and other charges requested and exceptions reserved' to refusal to give requested charges, at the time of trial, the appellate court will not be authorized to review such charges, and in the absence of such exceptions an erroneous charge will not be ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 2668, 2670; Dee. Dig. &wkey;1038(3), 1036(1).]
    5. Gaming <&wkey;98(2) — Criminal Pbosecution —Evidence—Sufficiency.
    In a prosecution for unlawfully betting and wagering at a game of matching coins for things of value, evidence held to support a verdict of guilty.
    [E'd. Note. — For other cases, see Gaming, Cent. Dig. § 292; Dec. Dig. &wkey;>98(2).]
    Davidson, J., dissenting.
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Carl Ellis was convicted of unlawfully betting and wagering, and he appeals.
    Affirmed.
    L. H. McCrea, of Roby, and J. C. Randel, of Hamlin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an indictment, omitting formal parts, reading as follows:

“Carl Ellis on or about the 22d day of February, 1916, in the county of Fisher and state of Texas, did then and there unlawfully bet and wager at a game of matching money and coins for such money and coins and for other things of value.”
“And further present upon their oath that on or about the 22d day of February, 1916, and anterior to the presentment of this indictment in the county of Fisher, state of Texas, Carl Ellis did then and there unlawfully bet and wager at a game of matching coins for other things of value, to wit, cold drinks.”

We have omitted the second and third counts in the indictment, as the court specifically withdrew them from the jury, and have only copied the first and fourth counts. The court in his charge only submitted the first count in the indictment, the charge reading:

“You are instructed that, if any person shall bet or wager at the game of matching money or coins of anjr denomination for such coins, or for other things of value, he shall be fined in any sum not less than $10 nor more than $50.
“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, in the county of Fisher and state of Texas, on or about the 22d day of February, 1916, did bet and wager at the game of matching money or coins for such coins or other things of value, as charged, you will find him guilty and assess his punishment at a, fine in any sum not less than $10 nor more than $50.
“You are instructed that a bet or wager is the mutual agreement and tender of a gift of something of value, which is to belong to the one or the other of the contracting parties, according- to the result of the trial of chance or skill, or both combined, and such agreement may be made by words, by words and acts, or by acts without words.
“In a criminal case the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt, and if you have such doubt you will acquit the defendant.
“You are the exclusive judges of the facts proved, and of the credibility of the. witnesses and of the weight to be given their testimony, but you are to receive the law as given you in this charge and be governed thereby.”

The jury found appellant guilty and assessed his fine at $15.

There is hut one bill of exceptions in the record, and it reads:

“Comes now the defendant and objects to the special charge requested by the state’s counsel No. 1 for the reasons:
“That said charge is upon the weight of the evidence.
“That said charge does not correspond with the 1st count or any other count in the indictment, as the allegation is, and the statute, ‘things of value,’ and said charge is not under said law or statute and allegations in accordance therewith.
“That same is in conflict with the- court’s main charge wherein the court defines what a bet or wager is.
“That same is not a correct definition of a bet or wager.”

The special charge to which these exceptions were reserved reads as follows:

“You are further charged herein that matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a bet or wager, provided said thing or things for which the matching is done is a thing of value.”

This charge is not upon the weight to be given the testimony, and corresponds with the first count in the indictment. It is a correct definition of a bet and wager. Stearnes v. State, 21 Tex. 692, Long v. State, 22 Tex. App. 195, 2 S. W. 541, 58 Am. Rep. 633; and cases cited under section 1197, Branch’s Ann. Penal Code. By reading the above special charge and the charge of the court herein copied it is manifest that the special charge is not in conflict with the court’s main charge, but is merely supplementary thereto.

In addition to this bill of exceptions, in the motion for a new trial appellant assigns many other grounds, but these are not presented in a way authorizing us to review them. In Hobbs v. State, 7 Tex. App. 118, Judge White takes up the various provisions of the procedure governing misdemeanor trials, and there announces the rules that have since been adhered to by this court, and that is, if a charge is given, it must be excepted to at the time of the trial, and special charge requested, and if the special charge is refused, an exception must be reserved to the action of the court in refusing to give such charge before we would be authorized to review the charge in a misdemeanor case; that if such exceptions are not reserved, even an erroneous charge will be no ground for reversal in misdemeanor cases. In that case he says the charge is erroneous, but, no proper exceptions being reserved, the judgment was affirmed. A few of the earlier cases approving this rule may be cited. Sewell v. State, 15 Tex. App. 56; Lloyd v. State, 19 Tex. App. 321; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Garner v. State, 28 Tex. App. 561, 13 S. W. 1004; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Anderson v. State, 34 Tex. Cr. R. 96, 29 S. W. 384; Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401. Later cases are referred to in the companion case of Pat Wilson v. State, 189 S. W. 1071, in which the opinion was rendered last week. In this case W. H. Parker testified, in substance:

“I saw Carl Ellis, appellant, matching money in Mr. Harris’ drug store; he drank coco-cola that sells for five cents a glass. . Carl Ellis was matching with Silas Glasscock. I knew it was money by the ring. Carl drank one and Silas Glasscock drank one. Carl Ellis got stuck and got some money out with which to pay for the drinks.”

This evidence would support the verdict, and the charge as given fairly presented the law.

The judgment is affirmed.

DAVIDSON, J., dissents. See Pat Wilson v. State, recently decided. 
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