
    WILSON v. STATE.
    (No. 9752.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    Gaming <@=^72 (6)—Playing cards in private residence with occupant’s consent and in his presence while his wife was temporarily absent held playing in “private residence actually occupied by a family,” within gaming statute.
    Playing cards in private residence with consent of occupant, who was present, though his wife was temporarily absent on a visit, was playing in “private residence actually occupied by a family,” within gaming statute, it being sufficient to show occupancy, if there is some constituent of family to invest premises with character of homestead.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Private Residence.]
    cg^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes-
    Commissioners’ Decision.
    Appeal from Donley County Court; J. R. Porter, Judge.
    W. A. Wilson was convicted of gaming, and he appeals.
    Reversed and remanded.
    
      Cole & Simpson, of Clarendon, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRY, J.

The offense is gaming, and the punishment is a fine of $50.

The only counts in the information which were submitted to the jury were counts 1 and 2. By count No, 1 it was charged that appellant played at a game of cards at a place then and there not a private residence occupied by a family; and by count No. 2 it was charged that appellant did bet and wager at a game of cards at a place then and there not a private residence occupied by a family.

The undisputed facts in the case show that the house at which the game was played was a private residence and that Jack Rutherford and his wife and children lived in' said house; that on the night in question Mrs. Rutherford and the children were away from home on a visit, and had been away on said visit since about the middle of July, and this offense was alleged to have'been committed on August 8, 1925, but Rutherford was at home while the game was being played, and consented thereto.

There was no contested issue in the case that the house where the playing took place was a private residence. The only contested issue was as to whether it was occupied by a family at the time the offense was alleged to have been committed. In submitting this issue, the learned trial judge instructed the jury as follows:

“A family, within the meaning of the gaming statute as above quoted, is defined as follows: ‘A family is the collective body of persons who live in one house or under one head or manager or household,’ and you are further instructed, gentlemen of the jury, ‘that it is not the private residence that protects the gaming from being unlawful, but it is the fact that the residence is at the time occupied by a family, not that some family makes it their residence, but for the time is away.’ In other words, the private residence must be actually and physically occupied by a family, as that term has been hereinabove defined for you, at the very time the betting or wagering at a game of cards is in progress, before gaming is exempted therein.”

Many pertinent objections were leveled at this charge and especially that portion of it defining what constitutes a family. The charge under the undisputed facts in this case was clearly, erroneous. The definition given of what it takes to constitute the occupying of a residence by a family under our gaming statute was taken largely from the case of Stallings v. State, 170 S. W. 160, 75 Tex. Cr. R. 44. If the correctness of the Stallings Case, supra, and of the Sloan Case, 170 S. W. 156, 75 Tex. Cr. R. 33, be conceded, it seems clear to us that they do not control the question as raised by the facts in the ' instant case. In each of those cases all of the constituent elements of the family were absent from the home at the time the game of cards was played; in fact, the owner of the house in each case testified that he gave the parties permission to engage' in a game of dominoes in his home, but, as stated by Judge Harper in the Sloan Case, supra—

“there 'is not the slightest intimation in the record that he invited them, or gave them permis.sion, to go to his home and for the time being turn it into a gambling room and engage in playing cards, betting money thereon.”

Further reviewing the question, Judge Harper said:

“Having obtained permission to enter this house by false pretenses, it was the same as though they had no permission, and they became mere naked trespassers. It was not the intent of the Legislature to exempt such game from the provisions of the law, and such construction would do violence to the whole spirit and intent of the statute. Their going to this house when they knew Mr. and Mrs. Cantrell were absent from home, and without permission, and without the knowledge of Mr. and Mrs. Cantrell, to deliberately engage in gambling with cards, the persons who did so would violate the law, for such house at such time and under the circumstances herein shown would not be a private residence occupied by a family within the spirit and intent of the law.”

In the instant case, we have an entirely different state, of facts. The owner of the residence was present, actually at home, at the time the gaming occurred. His wife, however, was temporarily visiting away from home, and it is clear that her absence from home was merely temporary.

We think the rule as to what constitutes a private residence occupied by a family is stated very clearly by Mr. Branch in section. 1168 of his P. C.

“To come within the meaning of the term ‘private residence occupied by a family’ there must be some constituent of a family, such as would be sufficient to come within the meaning of the word ‘family’ 'as used in the ‘homestead law’ ” — citing Williams v. State, 87 S. W. 1155, 48 Tex. Cr. R. 327; Patterson v. State, 116 S. W. 1151, 55 Tex. Cr. R. 393; Robbins v. State, 121 S. W. 504, 57 Tex. Cr. R. 8.

While there seems to be no case in this state where the exact question here presented has been decided, yet we think it clear from the reasoning of the authorities above cited, as well as many others that might be collated, that it was not the intent of the Legislature to make the mere temporary absence of one member of the household a sufficient showing to deprive the residence of the character of being occupied by a family.

We are not satisfied that the holding in the Stallings Case and the Sloan Case, supra, to the effect that a mere temporary absence of all members of the family would be sufficient to divest the residence of the characteristic of being occupied by a family. Beard v. State, 101 S. W. 796, 51 Tex. Cr. R. 61. But, as tbe facts in tbis case do .not clearly raise that question, it is not necessary perhaps to discuss it. Whether the Sloan and Stallings Cases, supra, be followed or not, we think it clear from the record in the instant case that there was no question but that the residence at which the gaming took place was a private residence and was actually occupied by a family. The authorities above cited support the proposition that, if there is some constituent of a family which would be sufficient to invest the premises with the character of a homestead, this is sufficient to show occupancy. It would be folly to say that, because the wife of Rutherford was temporarily visiting in another community at the time of this gambling, this within itself was sufficient to divest the premises of the homestead character. We think the charge complained of should not have been given; and, if the facts on another trial of this case show beyond dispute that the wife of Rutherford was merely temporarily absent, and that he was present, and the parties were participating in this game with his knowledge and consent, then instruction should be given to the effect that the premises in controversy was a private residence actually occupied by a family as that term is defined in the gaming statutes.

For the error above discussed, the judgment is-reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.  