
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Gaming- (§ 98) — Betting at Cards — Private Residence — Resort for Gaming — Evidence.
    A conviction of betting at a game of cards at a private house occupied by a family and commonly resorted to for gaming, in violation of_ Pen. Code, 1911, art. 548, could not be sustained, where there was no evidence that the house where the game was played was a private residence and that it was commonly resorted to-for gaming.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 291-297; Dec. Dig. § 98.]
    2. Gaming (§ 94)_ — Indictment—Variance.
    In a prosecution for betting at a game of cards at a private residence occupied by a family, evidence that the betting, if any, was with reference to a banking game exhibited there, and not a game of cards, constituted a fatal variance.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 274-283; Dec. Dig. § 94.]
    Appeal from Leon County Court; L. T. Dashiell, Judge.
    Cleve Robinson was convicted of betting at a game of cards in a private residence occupied by a family and commonly resorted to for gaming, and he appeals.
    Reversed and remanded.
    Joe H. Seale, of Centerville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of betting at a game of cards in a private residence occupied by a family and commonly resorted to for the purpose of gaming. '

It is sufficient to dispose of this case on the facts. This indictment was drawn under article 548 of the Revised Penal Code. The evidence fails to show that the house-where the game was played was a private residence; it further fails to show that it was commonly resorted to for the purpose of gaming. It is necessary to prove these matters in order to constitute a violation of the law under this prosecution.'

The facts show, if there was any betting done, which is a controverted issue so-far as appellant is concerned, it was a banking game exhibited, and not a game of cards, as charged in the indictment. This would be a variance under the authorities. See Chancellor v. State, 52 Tex. Cr. R. 464, 107 S. W. 823; Vinson v. State, 58 Tex. Cr. R. 47, 124 S. W. 652; Arredondo v. State, 58 Tex. Cr. R. 145, 124 S. W. 930; Averheart v. State, 30 Tex. App. 651, 18 S. W. 416; Shaw v. State, 33 S. W. 1078.

The judgment is reversed, and the cause remanded.  