
    RENFRO v. STATE.
    '(No. 4734.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1917.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Criminal Daw <&wkey; 1091(4) — Appeal—Bills oe Exceptions — Sueeicienct.
    Bills of exceptions merely setting out the questions objected to, the answers, and defendant’s objections were insufficient to require consideration.
    2. Criminal Daw <&wkey;364(3), 368(1) — Eviden oe — Res Gestae.
    On a trial for remaining in a place where a game was being played with dice, evidence that all those present except defendant were playing on the floor, that defendant left the room at a time specified, and that a witness heard some one say that he would shoot so much, was admissible as res geste, since all that was said or done, or which occurred, at the time of a transaction, tending in the slightest degree to explain the transaction or the conduct or motive of the parties, is admissible.
    3. Criminal Daw <&wkey;1170(l) — Harmless Error-Exclusion oe Evidence.
    On a trial for remaining in a place where a g'ame was being played with dice, assuming that the court erred in excluding the testimony of the players on the ground that they were principals, accomplices, or accessories, the exclusion of their testimony was harmless, where defendant himself swore that he was present and remained where the game was being played, and such witnesses would have testified to the same thing in substance, although they would also have testified that defendant did not remain as long as the sheriff and the deputy sheriff testified he did, and that he sat upon a machine and not on the bed, and that the game was played on the bed and not on the floor as testified by witnesses for the state.
    On Motion for Rehearing.
    4. Gaming <&wkey;72(6) — Oeeenses — Place as Element oe Oeeense.
    Pen. Code 1911, art. 557, makes it an offense to bet or wager anything at any of the games therein specified or at any game of any character that can be played with cards, dice, or dominoes, provided that no person shall be indicted thereunder for playing such games with dominoes of cards at a private residence occupied by a family, unless commonly resorted to for the purpose of gaming. Article 563 makes it an offense to go into or remain in any gambling house, or to remain in any place where any of the games prohibited by that act are being played. Held, that while it is not an offense to play cards and gamble in a game with cards at any private residence occupied by a family unless such private residence is commonly resorted to for the purpose, it is an offense to bet at any game played with dice anywhere, or to remain in any place where any such game is played, whether in a private residence occupied by a family or not.
    Appeal from Cottle County Court; W. O. Jones, Judge. ■
    Dick Renfro was convicted of an offense, and he appeals.
    Affirmed.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Article 557,' P. C., makes it an offense for any person to bet at any game played with dice anywhere. Bowles v. State, 67 Tex. Cr. R. 578, 150 S. W. 626; Knowles v. State, 67 Tex. Cr. R. 600, 150 S. W. 777; Scott v. State, 69 Tex. Cr. R. 615, 616, 155 S. W. 226 (2 cases). Article 563, P. C., makes it an offense for any person to remain in any place where any such game with dice is played. Appellant was convicted of this offense, and his punishment assessed at the lowest prescribed by law.

Mr. Combest, the sheriff, and Mr. Bebout, his deputy, both swore that they caught Elmo Barron, Dr. Nugent, Mr. Harris, Paul Huff, and Jack Jones gambling with dice, playing craps in a certain room in the Padu-cah Hotel, in Paducah, Cottle county, Tex., on May 10, 1917, at about 10:30 o’clock at night, and that these persons gambled with dice for from 30 minutes to about an hour; that these persons played on the floor; that appellant was in the room and remained therein practically, all of the time this gambling was going on. They swore he sat on the bed during the time; that he did not himself play in the game.

Appellant himself swore, in substance, that he was in that room, and remained therein while said gambling was carried on from 10 to 20 minutes; that the game was begun after he went into the room. He swore:

“I stayed 10, 15, or 20 minutes after the game started; may have been longer than that but didn’t stay long.”

He swore that said five persons named were all in the game, but that he did not sit on the bed but on a machine in the room, and that the gambling with the dice was on the bed and not on the floor.

Appellant has one bill of exceptions to this question asked by the county attorney, “What position were the men in on the floor?” and the answer, “All the men were playing on the floor except defendant.” This is the whole of the bill except his objections that it was not shown that appellant was on the floor or playing. He has another bill to this question by the county attorney, ‘When did you see the defendant come out of the room?” and his answer, “It was about five minutes before 12 o’clock when the defendant came out of the room.” He objected to this because it was immaterial, irrelevant, etc. This is the full substance of the bill. He has another to this question asked by the county attorney, “What did you hear?” and the answer, “I heard some one say that he would shoot so much.” Appellant objected to this because it was not shown that appellant made the remark nor that he was in the room at the time. ’

Neither of these bills are sufficient to require their consideration. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Best v. State, 72 Tex. Cr. R. 204, 164 S. W. 996, and authorities cited. But, even considering them in the light of the record, they are clearly the res gestae or facts and circumstances hovering around and immediately connected with the transaction occurring at the time and place of the main fact. It has all the time been held, as stated by Judge White in his Ann. P. C. §1236, as follows:

“All which was said or done, or that which occurred, at the time of the homicide [transaction] tending in the slightest degree to explain the transaction or conduct or motive of the parties is admissible.”

These questions and answers objected to were admissible.

Appellant has another bill which recites that:

On the trial “defendant offered the witness Elmo Barron who was present at the time of the alleged offense, and is in a position to know, if anybody knows, the facts in this case.”

The bill further alleges that he expected to prove by said witness that he was present on said occasion with the four other persons named where the game of dice was engaged in by them, and that it was begun about 15 minutes before 12 o’clock; that shortly thereafter appellant got up and left the room; that the game was not played on the floor but on the bed; and that appellant during the time he was in the room sat upon a machine and not the bed. The county attorney objected to this witness testifying under article 791, O. O. P., which prescribes that persons charged as principals, accomplices, or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another — objecting that because he had been prosecuted, etc., for playing said game. The court sustained his objection and refused to permit the witness to testify. He has other bills showing that he offered the same testimony, in substance, by several of the other persons engaged in the game, but the court refused to permit any of them to testify. Appellant contends that the county attorney’s objections were mere objections, and not proof of facts which disqualified the witness. His contention may be conceded as well taken. If, as a matter of fact, said witnesses were principals, accomplices, or accessories to the offense charged against appellant, article 797, C. O. P., provides that after they had been tried and convicted and their punishment was fine only, they may testify after they have paid the fine and costs. As stated, it may be conceded that the witnesses were competent to testify, and that the court erred in not permitting them to testify; then the question is whether such error was material or harmless.

As stated, appellant himself swore that he was present and remained where the game was being played, as stated in his testimony above. Each of these excluded witnesses would have sworn the same thing, in substance. In other words, their testimony, as well as all the other, without question and without doubt, shows that appellant was present and remained a considerable period of time in the room where the game and gambling was carried on. The fact, if so, that he did not remain as long as the sheriff and deputy testified he did, or that he did not sit upon the bed but a machine, and that the game was not played by the said persons on the floor but on the bed, would not, and could not, have changed the result.

It is well established that a harmless error is not ground for reversal. Exclusion of the testimony of each of these witnesses was harmless, and does not require or authorize a reversal. The punishment assessed was the lowest prescribed by law.

No other questions are raised which require discussion.

The judgment is affirmed.

On Motion for Rehearing.

The sole ground of appellant’s contention in his motion for rehearing is that under the statute (art. 563, P. C.) it is not made an offense to go into and remain in any place where a game with dice is being played, unless such place is a gambling house, or is commonly resorted to for gaming. He cites and relies upon Walters v. State, 58 Tex. Cr. R. 240, 125 S. W. 11. The statutes applicable and prescribing this offense were cited and given in the original opinion. It is unnecessary to repeat them. As stated and shown by authorities there cited, it is an offense for any person to bet at any game played with dice anywhere, whether in a private residence occupied by aTamily or not, and article 563 makes it an offense for any person to remain in any place where any such game with dice is played. The Walters Case is not in point herein. In that case the charge was that appellant remained in Matilda Hagen’s house, where a game of cards was being played by certain persons. The uncontradicted proof in that case was that said house was the private residence of the woman alleged, and that it was not commonly resorted to for the purpose of gaming; that one game being the only game ever played therein, so far as the testimony showed. It is not an offense to play cards and gamble in a game therewith at any private residence occupied by a family, unless such private residence is commonly resorted to for that purpose.

In Purvis v. State, 62 Tex. Cr. R. 302, 137 S. W. 701, Ann. Cas. 1913C, 536, this court expressly overruled the cases of Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736, and Purvis v. State, 52 Tex. Cr. R. 342, 107 S. W. 55, wherein it was held by Judge Ramsey that it was an offense to bet at a game of cards played at a private residence, even where not commonly resorted to for that purpose; this court holding that it was no offense under the statute to play a game with cards at a private residence occupied by a family and bet thereon, unless such private residence was commonly resorted to for that purpose.

What Judge Ramsey said was meant by “any place” in said article 563 in said Walters’ Case is restricted to what was being decided in that case; that is, as to a game played with cards at a private residence occupied by a family which is not commonly resorted to for that purpose. It is not applicable to any place where a game with dice is played and betting thereon. It was obiter dictum as to any place where gambling is done with dice.

The motion is overruled. 
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