
    FRANCO v. STATE.
    (No. 11170.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied Jan. 18, 1928.
    Criminal! law <§^>1017 — Court of Criminal Appeals was without jurisdiction of appeal from judgment directing destruction of alleged gambling paraphernalia seized by state (Pen. Code 1925, arts. 636, 637, 638; Code Cr. Proe. 1925, art. 53).
    Court of Criminal Appeals was without jurisdiction of appeal from judgment directing destruction of property claimed to be gambling paraphernalia seized by state, under Pen. Code 1925, arts. 636, 637, 638, since under Code Cr. Proc. 1925, art. 53, Court of Criminal Appeals has jurisdiction of criminal matters only and is without jurisdiction to try issue involving rights of property.
    
      Appeal from El Paso County Court, at Law; J. M. Dea ver, Judge.
    The state seized a slot machine in Jose Franco’s place of business, and the court gave Franco notice to appear and show cause why the property should not he destroyed. From a judgment directing the destruction of the property, Franco' appeals.
    Appeal dismissed.
    G. W. Groom and Ponder S. Carter, both of El Paso, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

As we understand this record, officers seized a certain slot machine in appellant’s place of business, returned into the proper court a list of what was seized, setting up the fact that it was a slot machine and gambling paraphernalia. The court gave appellant notice to appear and show cause why the property should not be destroyed. Appellant appeared and filed an answer consisting of a general demurrer and general denial. A jury was impaneled, and heard evidence upon the issues joined, and answered seriatim three questions submitted to them by the court. Both parties filed motions for judgment, basing their motions upon the an-. swers of the jury refer-red to. The court declined the motion of appellant, but granted the motion of the state and entered judgment directing the destruction of the property. Apparently this appeal is an effort to bring before us the supposed error of the court in rendering the judgment above referred to.

This court is without jurisdiction to try and determine the issues involved in this ease. Articles 636, 6(37, 638, Pen. Code 1925, seem to lay down rules governing the procedure in a case such as this;. It is provided by article 637 that when the court makes an order directing the destruction of the property, such order shall be carried out by the proper officer, “unless the owner, lessee or person entitled to possession under this law, shall, before the destruction of said property, file suit to recover same.” It is provided in article 638 that any person having interest in or entitled to possession of such property shall proceed “as in ordinary civil cases” to try the issue of whether such property is of that character which should be destroyed under the statute, or whether the claimant should be entitled to hold same.

The Court of Criminal Appeals has jurisdiction of criminal matters only. See article 53, Code Cr. Proc. 1925. We are without jurisdiction to try an issue involving the rights of property. Appellant is mistaken in his remedy.

The appeal is dismissed.

On Motion for Rehearing.

Appellant files a motion for rehearing, insisting that we ought to regard this as a criminal case and take jurisdiction of same. We are unable to perceive any similarity in legal principle between the action of the state in seizing the alleged gambling paraphernalia in this case and its notification to appellant that same would be destroyed and an action upon a forfeited bail bond. Appellant insists that there is such similarity.

As pointed out in our original opinion, there are provisions in our -statute which clearly provide appellant with a civil remedy, and which seem to us to deprive this court of any jurisdiction in a case such as this. We have again reviewed the matterj but see no reason to change our minds.

The motion for rehearing will be overruled. 
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