
    PYTHIAN v. STATE.
    (No. 6657.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.)
    1. Gaming <&wkey;>77 — Evidence that defendant remained as onlooker at game of dice in a restaurant justified conviction.
    In view of Pen. Code 1911, art. 557, that all gambling at games played with dice is prohibited, where the state’s theory, sustained by the evidence, in a prosecution for gaming under Pen. Code 1911, art. 563, was that various persons were playing games with dice and betting money in a restaurant and that defendant went into the house and remained as an onlooker but did not participate in the games, the evidence would support a conviction.
    2. Gaming <&wkey;68( I) — Gaming with cards and dice distinguished.
    Under Pen. Code 1911, tit. 11, c. 4, to gamble with cards unless it was in a gambling house or one resorted to for gambling purposes is not prohibited, while with games of dice there is no such limitation.
    Appeal from Williamson County Court; F. D. Love, Judge.
    
      Doak Pythian was convicted of violating the gaming law, and he appeals.
    Affirmed.
    W. O. Wofford' and J. A. Breckenridge, both of Taylor, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a judgment assessing against appellant a fine of $25 for violating the gaming law.

The conviction is under article 563 of the Penal Code, which reads thus:

“If any person shall go into or remain in any gambling house, knowing the same to be such, or shall remain in any place where any of the games prohibited by this act or, within his knowledge, being played, dealt or exhibited, he shall be punished by a fine of not less than twenty-five nor more than fifty dollars. Gambling house and gaming house, as used in this law, is meant any place where people resort for the purpose of gaming, betting or wagering.”

All gambling at games played with dice are prohibited by another section, namely, article 557. See Knowles v. State, 67 Tex. Cr. R. 600, 150 S. W. 777.

The state’s theory, sustained by the evidence, is that various persons were playing games with dice and betting money in a certain restaurant and that appellant went into the house and remained as an onlooker, but did not participate in the game. As we understand this construction of the statute, the evidence supports the conviction. Renfro v. State, 82 Tex. Cr. R. 344, 199 S. W. 1096.

The court’s reasoning in the last-mentioned case is that inasmuch as betting at a game played with dice is unlawful wherever played, it is likewise unlawful for one to remain in any place where such betting is going on. The case of Walters v. State, 58 Tex. Cr. R. 240, 125 S. W. 11, is distinguished upon the ground that the game there in question was not unlawful nor in an unlawful place. To gamble with cards unless it was in a gambling house or one resorted to for gambling purposes is not prohibited. Penal Code, tit. 11, c. 4. With games of dice, there is no such limitation. Scott v. State, 69 Tex. Cr. R. 615, 155 S. W. 226.

The judgment is affirmed. 
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