
    Bachellor v. The State.
    It is .well settled that it is for the jury to decide upon the credibility of a witness and the weight of evidence; and where they have decided upon conflicting testimony this court wil 1 not disturb their verdict.
    See this ease as to instructions to the jury.
    Where parties bet upon a gamo of cards, with the understanding that the loser shall pay the bill of the company, or for liquor to be paid for by the loser, it is in effect a betting of money.
    Appeal from Busk. The defendant was indicted for playing in a certain storehouse for retailing spirituous liquors at a game witli cards, on which money ivas bet. A -witness testified to the playing, as charged, in the jilacc charged in the indictment. There was an attempt to discredit the witness by proving an alibi. A witness for the defendant testified that he was elsewhere on the (lay on which the playing was stated to have occurred by the State’s witness. Another witness, introduced by the defendant, testified that lie had never seen the defendant play for money in the house mentioned in the indictment; that he had seen him play what was called a “ whisky game,” by which he understood that the loser had to treat; he had never seen him bet money on any game at cards.
    The court instructed the jury that “if the defendant played cards for whis“key, in which the loser was to pay in money, or foot the bill,” at the time and place charged in the indictment, it would authorize a finding for the State. The defendant was convicted, and appealed.
    
      J. B. Armstrong., for appellant.
    I. If the jury were guided by tiie testimony of George Pierce, the only witness who testifies for the Slate, the verdict of guilty was wrong. The witness's statements, when taken together, and in connection with the testimony of the witnesses Cumby and Jones, show most conclusively that he was mistaken in the man he saw play cards, or that he was a corrupt,-willing witness, determined and bent'upon the conviction of appellant. He says positively “that lie saw appellant play cards for money “in Mr. Carr’s grocery, in tiie town of Bellevue, on the day that a fight took “place between his son, James Pierce, and Ben Jones.” “That his son and “Ben Jones never had but one fight or difficulty, and that was the time Jones “knocked his son down with a four pound weight.” “ That he saw appellant “ playing in a game with Harvey Pitncr and Robert Cumby for monejn” How Robert Cumby, one of the parLies with whom Pierce says appellant was playing cards on this memorable battle-day, says: “That he was at Bellevue “ on the day of the difficulty between Janies Pierce and Boil Jones.” “ That “appellant had gone off to another portion of the country on the Sunday “before, and had not returned to Bellevue on the day spoken of by witness “Pierce.” “That he knows appellant was not at Bellevue on the day “ spoken of by witness Pierce, and that he never saw appellant play cards for “money in Mr. Carr’s grocery.” Now this is, in substance, the testimony of one of tiie men with whom Pierce says appellant was playing cards.
    Ben Jones corroborates Cumby throughout as to the appellant’s absence from Bellevue on the day spoken of by Pierce.
    It was .urged in the court below that witness Pierce had said : “1-Ic has fre-“quontly seen appellant play cards for money within twelve months before “ the finding of the indictment.” bo he did state, but did not say it was in Mr. Carr’s grocery, nor even in the county of Rusk, and when taken with that part of his cross-examination in which he says “ lie seldom ever went to Belle-“vne,” it cannot reasonably be inferred that he meant Mr. Carr’s grocery, because Mr. Carr’s grocery is proven to bo in the town of Bellevue by his own testimony. The two expressions, “seldom ever went to Bellevue,” and “has frequently seen appellant play cards for money,” &c., are antagonistic, and cannot be reconciled.
    II. The conclusion that the finding of the jury was based upon the witness George Pierce is so foreign to everything like sound reason, it follows, as a matter of course, that they were controlled by the testimony of Ben Jones, 'in which he said “that lie had seen appellant play cards in Carr’s grocery in “what they called a whiskey game, in which the loser has to treat,” and the charge of the court.
    This proof does not support the charge in the indictment that appellant “did play a game with cards upon which money was bet,” and this court so held in Decatur Hale v. The State of Texas, at Tyler, April Term, 185H. By reference to the bill of exceptions in this case it will be scon that the charge of the court is substantially the same as that in the case referred to.
    
      Attorney General, for the State.
    I. The charge is obviously correct and •sensible. In such a case the parties would'clearly be betting money to he spent in liquor; and whether they were to appropriate it to that or whatsoever other object, can make no difference, so far as this charge is concerned. Tiiis attempt at evasion is a very common one, and ought to be defeated.
    II. The second point involves a question of credibility of affirmative testimony on the part of the State and negative on the part of tiie defendant, i. <?., that defendant’s witnesses did not see him at tire place in questiou on the day of tiie playing proved by tiie State; but even one of these had seen defendant play cards at the place in question at a “whiskey game,” that is, where the loser was “to stand treat,” i. e>, “pay money for the whiskey.” There is abundant testimony to sustain the verdict and the ruling of the judge in refusing to disturb it.
    III. Tiie case of Decatur Hale v. The State, (Tyler Op. Book of 1852, p. 203,) does not decide this case. For here, even in tiie “ whiskey game,” money was really what was bet or hazarded, and that was to be spent in whiskey, and the charge of the court is to the same effect, and therefore correct. Again, there was positive proof by Pierce that money was bet on the game which he saw, and tiie attempted negative case of defendant, i, e., that his witness did not see 'that game or believed defendant was in tiie town on that day, cannot, under the rules of law applicable to the case, disturb the verdict.
   Wheeler, J.

It is well settled that it is for the jury to decide upon the credibility of witnesses and the weight of evidence. And where they have decided upon conflicting testimony tills court will not disturb their verdict. The jury doubtless gave' credence to the witness who testified on behalf of the State, and did not credit tiie testimony by which the defendant sought to impeach his credibility. They were the exclusive judges of that question. We see no reason for the supposition that they found their verdict on the statement of the defendant’s witness respecting the “whiskey game,” of which he spoke, but to which lie fixed no date. Nor is there any reason to suppose that the verdict of the jury was influenced by the instruction of the court in respect to that game. The testimony was direct and positive to the fact of the playing at a game on which money was bet, at the time and place charged, and on that evidence, doubtless, the jury found their verdict. It is not very material, therefore, whether the instruction of the court was correct or not as to the abstract proposition embraced in it. It was, however, substantially correct. If the parties bet upon the game with the understanding that the loser should pay the bill of the company, it was, in effect a betting of money. It certainly was not what the parties might drink which was risked or bet upon the game. It was not property nor its representative; but it was money, which, instead of being paid by the loser to the winner, was to be paid to the dramseller. The conviction appears to have been legal and correct, and the judgment is affirmed.

Judgment affirmed.  