
    No. 2704.
    Henry Borders v. The State.
    1. Gaming.—It is no offense against the laws of this State to bet or wager at a game played with dice or dominoes át a private residence.
    2. Same—Evidence—Charge of the Court—Fact Case.—The evidence in this ease showed that the house in which the playing was done was a private residence, but that it had been frequently resorted to for the purpose of gaming. Under this evidence, the trial court instructed the jury that, if the said house was “used commonly and exclusively for the purpose of gaming, defendant would be guilty, even though the house was a private residence.” Held, that the instruction was erroneous; and that, as the evidence shows that the house was a private residence, it does not support the conviction.
    Appeal from the County Court of Ellis. Tried below before the Hon. B. McDaniel, County Judge.
    The opinion sufficiently discloses the case. The penalty assessed was a fine of ten dollars.
    
      JE. P, Anderson, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Willson, Judge.

It is not an offense against the law to bet or wager at a game played with dice or dominoes at a private residence. (Willson’s Texas Crim. Laws, secs. 592-595.) In this case the evidence shows that the game bet at was played at a private residence. There was evidence showing that said resideuce had frequently been resorted to before the playing for which defendant was prosecuted, for the purpose of gaming. •

Opinion delivered November 23, 1887.

In his charge to the jury the trial judge instructed that if the house where the playing occurred was “used commonly and exclusively for gaming, the defendant would be guilty, even though said house was ostensibly a private residence.” This charge was excepted to by the defendant at the time of the trial, be.cause not warranted by the evidence. We think said charge wd's erroneous, and we are also of the opinion that the cónviction is not sustained by the evidence, the playing and betting having occurred at a private residence.

The judgment is reversed and the cause is remanded.

Reversed and remanded.  