
    HARRIS v. STATE.
    (No. 4710.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Gaming &wkey;98(2) — Playing Cards — Evidence. .
    . Evidence, on prosecution for playing cards in a place other than a private residence, held insufficient to show playing.
    2. Gaming <§=»98(1) — Caed Playing — Private Residence — Evidence.
    Evidence, on prosecution for playing cards at a place not a private residence, held to show the tent in which the alleged play took place to be a private residence.
    3. Gaming <&wkey;77 — Being Presenil-Onlook-ees. ⅛ ',
    ⅛ The statute against bemg present where gambling is being carried on applies only to onlookers, and not to those playing.
    Appeal from Cottle County Court; W. O. Jones, Judge.
    Charley Harris 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.
   DAVIDSON, P. J.

The prosecution is predicated upon three counts. The first charges that appellant did unlawfully play at a game played with cards at a place which was not then and there a private residence and occupied by a family; the second, that appellant did unlawfully bet money at a game played with cards at a place which was not then and there a private residence and occupied by a family; and, the third, that appellant went into and remained in a place where a game with cards was then and there being played, and which said place was not then and there a private residence and occupied by a family.

The evidence shows that there were 12 or 14 negroes working under the employment of a certain party and occupied a couple of tents; that one of these tents was occupied by a man and his wife as their residence, but the evidence does not definitely show which tent was so occupied. The men were inmates of the place and- slept and took their meals there. The evidence is barely sufficient, if at all sufficient, to show that there was card playing. Purvis v. State, 62 Tex. Cr. R. 302, 137 S. W. 701, Ann. Cas. 1913C, 536. Nobody testified to seeing a game played, and the strength of the evidence is found in the fact that some negroes were seen in one of the tents. One witness saw defendant with cards in his hands and money in his shirt pocket. Purvis Case, supra. Another witness testified he saw some money on a bed. We are of opinion that this evidence is not sufficient to support the judgment as well from what has been stated as from the further fact that it was a private residence. There is no allegation to the effect that this private residence was a place of common resort, or that intoxicants were sold. The state’s case is that card games were played in a house which was not then and there a private residence. We are of opinion, under the decisions, that this was a private residence. Hipp v. State, 45 Tex. Cr. R. 200, 75 S. W. 28, 62 S. W. 973.

It is also suggested for reversal that the third count, to wit, remaining in a place 'where parties were gambling, should not have been charged or submitted to the jury. If appellant engaged in the game, he could not be charged under the statute which prohibits his being present in a place where gambling is being carried on. These statutes are different and intended to cover different aspects of the law. If he was engaged to the game, of course he would be present; but that statute was intended £o apply to those parties who were present and not engaged in the game but looking on. Prom any viewpoint of this case, we think the conviction should not have been obtained.

The judgment is reversed, and the cause remanded.  