
    RENFRO v. STATE.
    (No. 4708.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1917.)
    1. Ceiminal Law <&wkey;784(l) — Instetjctions— ClBCUMSTANTIAL EVIDENCE.
    The evidence being purely circumstantial, the charge should instruct on circumstantial evL dence.
    2. Gaming <&wkey;98(2) — Caed Playing — Stieei-oiency oe Evidence.
    The state’s evidence on a prosecution for playing cards, being purely circumstantial, and entirely consistent with defendant’s, that they were expecting to play cards on the coming of others, but had not begun, is insufficient for conviction.
    Appeal from Cottle Cfranty Court; W. O. Jones, Judge.
    Dick Renfro was convicted, and appeals.
    Reversed and remanded.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant’s conviction was for violation of the law against gaming, the specific charge being as follows:

“Did then and there unlawfully play at a game played with cards at a place which was not then and there a private residence and then and there occupied by a family.”

The statute covering the offense is' article 54S, P. O. It appeared from the state’s testimony that two witnesses, who were officers of the county, entertained suspicions that persons in a certain hotel were engaged in a game of poker, and that they went to the hotel and looked through the transom over the door and recognized appellant and two others sitting on the floor, each of them having money in front of him. One of these witnesses claims he saw' a deck of cards in the hands of one of the parties, but did not know what kind of cards; saw no spots on them; did not «ee anybody shuffle the cards or play or bet with or at them; that the door to the room was locked. The other witness testified that he saw appellant sitting on the floor with money in front of him; did not see any cards or any one playing or betting, at any game. He further testified that as they left they met two other parties, namely, Roscoe Renfro and Paul Huff, coming up the steps.

Appellant’s testimony was to the effect that he and two other parties who were in the room with him and Mr. Huff and Mr. Renfro had made arrangements to play a game of cards, but did not engage in it for the reason that, while they were waiting for Huff and Renfro to return from breakfast and begin the game, the officers came and no game was played. In fact, he stated that they had no cards, but were waiting for Huff and Ren-fro to bring them when they came back from breakfast.

The charge was excepted to because of the failure to charge on circumstantial evidence, and the special charge on that subject was refused. This was error. Appellant contends that the evidence was insufficient, and in this we think he was correct. The evidence was purely circumstantial, and that of the state entirely consistent with that of the appellant to the effect that they were expecting to play a game of cards on the coming of Renfro and ITuff, but it had not begun. Fallwell v. State, 48 Tex. Cr. R. 35, 85 S. W. 1069; Berry v. State, 85 S. W. 14; Hale v. State, 49 Tex. Cr. R. 105, 90 S. W. 654; Looper v. State, 56 Tex. Cr. R. 498, 120 S. W. 880; Bowen v. State, 69 Tex. Cr. R. 242, 153 S. W. 306; Ables v. State, 49 Tex. Cr. R. 292, 92 S. W. 414.

The motion for a severance, which was formal, as required by article 727, Vernon’s O. O. P., was filed in order to secure the testimony of Jim Connor. Apparently, the motion should have been granted. O. C. P. art 791, and cases1 cited in Vernon’s Orim. Statutes, art. 91, P. C.; Branch’s An. P. O. pp. 373, 374, and cases cited. As presented in the bill of exceptions and qualified by the court, we are unable to determine whether there was reversible error in refusing the motion for a severance.

Other questions presented hre not likely to arise in the event of another trial.

For the errors pointed out, the judgment of the lower court is reversed, and the cause remanded. 
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