
    BOWLES v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    1. Indictment and Information (§ 167)— Issues and Proof — Surplusage.
    Under Pen. Code 1911, art. 557, providing that any person who shall bet or wager any money or other thing of value at any game of poker, dice, jack pot, high dice, etc., or at any game of any character whatever played with cards, dice, or dominoes, or who shall bet or wager on anything in any place where people resort for the purpose of betting or wagering, shall be fined as therein provided, but that no person shall be indicted thereunder for playing such games with cards or dominoes at a private residence occupied by a family, unless commonly resorted to for the purpose of gaming, it is an offense to bet on any game played with dice wherever played; and hence in a complaint and information charging accused with betting on a game played with dice called “craps,” at a party’s private residence, an allegation that such private residence was commonly resorted to for the purpose of gaming was surplusage, and need not be proved.
    [Ed.'Note. — For other eases, see Indictment and Information, Cent. Dig. ■§ 531; Dec. Dig. § 167.]
    2. Witnesses (§ 48) — Competency—Conviction of Crime — “Convict.”
    A person convicted of a felony who has appealed and after affirmance has moved for a rehearing, which motion is still pending, is not an incompetent witness under Code Cr. Proc. 1911, art. 788, subd. 3, providing that all persons who have been, or may be, convicted of felony in this state, or in any other jurisdiction unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime, shall be incompetent to testify in criminal cases, especially in view of Pen. Code 1911, art. 27, defining a “convict” as an accused person after final condemnation by the highest court of resort which by law has jurisdiction of his case, and to which he may have thought proper to appeal.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§, 109-115; Dec. Dig. § 48.
    
    For other definitions, see Words and Phrases, vol. 2, p. 1584; vol. 8, p. 7619.]
    Appeal from Van Zandt County Court; C. L. Stanford, Judge.
    Ulysses Bowles was convicted of crime, and he appeals.
    Affirmed.
    Reese & Hubbard, of Canton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

By complaint and information appellant was charged with betting at a game played with dice called “craps” at the private residence of Charley Randall, which said private residence was commonly resorted to for the purpose of gaming. The jury fixed the lowest penalty.

Under the statute (P. C. art. 557) betting on any game played with dice is made an offense wherever played. The case was tried by the state on the theory that that part of the information charging that the private residence of Randall was commonly resorted to for the purpose of gaming was surplusage. On the part of the appellant it was tried on the theory that it took that to make the offense, and that, the allegation having been made, it was necessary to prove it.

The testimony, without question, was suffii-cient to justify the jury to convict if the said allegation could be treated as surplus-age, and did not have to be proved by the state in order to make out the offense. Without the last words in the information, “which said private residence was commonly resorted to for the purpose of gaming,” it properly charged an offense against appellant. These last words were, therefore, sur-plusage, and the state was correct in so treating them, and so was the charge of the court. Sheppard v. State, 1 Tex. App. 304; Warrington v. State, 1 Tex. App. 173; Ellis v. State, 59 Tex. Cr. R. 419, 128 S. W. 1125; Jordan v. State, 37 Tex. Cr. R. 222, 39 S. W. 110; Pittman v. State, 14 Tex. App. 576; Mayo v. State, 7 Tex. App. 346; Smith v. State, 7 Tex. App. 384; Cudd v. State, 28 Tex. App. 128, 12 S. W. 1010; Hammons v. State, 29 Tex. App. 448, 16 S. W. 99. The court, therefore, did not err in refusing to give appellant’s special charges, making it essential to the conviction that the state should prove that the said private residence was commonly resorted to for gaming. And appellant’s contention that as the evidence showed said Randall’s house was a private residence where his family resided, and even though not resorted. to commonly for gaming purposes, was no defense. The statute makes it an offense, as stated above, to bet anywhere on any game played with dice.

The appellant objected to the state’s witness Bud Gray testifying, because he had been convicted of a felony. The whole bill and the qualification thereof by the judge shows that, while he had been convicted of a felony, he had appealed his case, and, although the judgment had been affirmed, it was still pending on a motion for rehearing. Therefore the judgment was not final at the time he was offered as a witness and testified. He was therefore not an incompetent witness. P. C. art. 27, and cases cited thereunder; also article 788, C. C. P., subd. 3, and cases cited thereunder.

The judgment will be affirmed.  