
    SLOAN v. STATE.
    (No. 3241.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Gaming (§ 98) — Criminal Prosecutions —Sufficiency of Evidence.
    On a trial under an information charging, in two counts, that accused played cards at a place other than a private residence occupied by a family, and that he knowingly went into and remained at a place where a game of cards was being played, evidence held, sufficient to support a conviction for going into and remaining at a place where cards were being played.
    [Ed. Note. — Eor other eases, see Gaming, Cent. Dig. §§ 291-297; Dec. Dig. § 98.*]
    2. Criminal Law (§ 878*) — General Verdict — Applying to Count Established by Evidence.
    On a trial under an information charging, in two counts, that accused played cards at a place other than a private residence occupied by a family, and that he knowingly went into and remained at a place where cards were being played, where the evidence was sufficient to support a conviction under the second' count, a general verdict of guilty should be applied to that count.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. § 878.*]
    3. Criminal Law (§ 424*) — Evidence—Admissions by One Defendant.
    Where a number of persons, charged with playing cards and with going into, and remaining in a place where cards were being played, were tried together, an admission of one of the defendants, subsequent to the commission of the offense and in the absence of the other defendants, was properly admitted, as it was admissible against him.
    [Ed. Note. — Eor other cases, see Criminal Law, §§ 1002-1010; Dec. Dig. § 424.*]
    4. Criminal Law [§ 824*) — Instructions— Necessity of Requests.
    Under White’s Ann. Code Or. Proe. art. 719, providing that in criminal actions for misdemeanor the court is not required to charge the jury, except at the request of counsel on either side, on a trial for playing cards and going into and remaining in a place where cards were being played, the court was not bound to charge that an admission by one of the defendants subsequent to the offense could not be considered in passing on the guilt of the other defendants, where no such charge was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004: Dec. Dig. § 824.*]
    5. Gaming (§ 72*) — Criminal Offenses — Statutory Provisions.
    Under Pen. Code 1911, art. 548, providing that if any person shall play at a game of cards at any place, except a private residence occupied by a family, he shall be punished as there provided, and that the provision permitting gaming at a private residence shall not apply if the residence is one commonly resorted to for gaming, the number of times that games are played is not the sole criterion of whether the house is commonly resorted to for gaming; and a man, his friends, and invited guests may play frequently without violating the law, if the main object and purpose is not to gamble for money, while if a man throws open the doors of his home to any and all who desire to enter therein for the purpose of gambling with cards there is a violation of the law, though evidence that this was continuously or frequently done would add additional strength to the evidence.
    [Ed. Note. — Eor other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.*]
    6. Gaming (§ 72*) — Criminal Offenses — Statutory Provisions — “Trespasser” — “Private Residence Occupied by a Family.”
    Where a number of persons, none of whom resided in C.’s residence, obtained permission from C. to go to his house in the absence of himself and his family for the purpose of playing dominoes, and after having gone there under this permission proceeded to gamble with cards and bet money on the game, they were trespassers, and the house was not a private residence occupied by a family, within Pen. Code 1911, art. 548.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. § 72.*
    For other definitions, see Words and Phrases, First and Second Series, Private Residence; Trespasser.]
    7. Criminal Law (§ 721*) — Argument of Counsei — Reference to Failure to Testify.
    On a trial for playing cards at a place other than a private residence occupied by a family, where C. testified that he gave defendants permission to go to his residence in his absence for the purpose of playing dominoes, the statement of the state’s counsel in argument that the testimony of C. was all the testimony defendants had brought to contradict the state, that the defendants in latching the door and placing a quilt over the window were not perpetrating a joke on the officers, and that they brought no evidence that it was a joke, was not such a direct or indirect reference to defendant’s failure to testify as necessitated a reversal, as other persons might have been called to testify to the same facts as C., while, if defendants were perpetrating a joke, this could have been shown without defendants being called to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]
    Appeal from Hall County Court; John D. Bird, Judge.
    Harley Sloan was convicted of an offense, and he appeals.
    Affirmed.
    Moss & Leak, of Memphis, 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
    
   HARPER, J.

Appellant was prosecuted and convicted under an information containing two counts, one charging him with playing at a game of cards at a place other than a private residence occupied 'by a family, and the other charging him with knowingly going into and remaining at a place where a game of cards was being played, which said place was not a private Residence occupied by a family, the appellant then and there knowing that- said game was being played. The court submitted both counts to tie Jury, and a general verdict was returned finding him guilty.

J. E. King, sheriff of Hall county, testified: That on Sunday night, April 12th, he went to the house of Henry Cantrell about 8:30 o’clock. He could see a.-light in the room, but the windows had quilts spread over them, and witness could not see in the room.

That while standing there he could hear cards flipping, money rattling, and heard one party say he would open it for one dollar, and heard Farley say he would raise it, and he asked, “How many cards do you want.” That he recognized the voices of Farley and McOanne, hut did not recognize the voices of the others talking. That he broke into the house, and Farley, Alexander, and Stallings were around the table, on which a quilt was spread. Sloan and McOanne were on the bed; and he found a deck of cards between the mattresses on this bed, where he saw McOanne put something as he came into the room. On Monday following Farley had told him, when Alexander was present, that certain of the boys were not playing.

W. H. Lindsey, chief of police of Memphis, testified: That he was with the sheriff, and testifies to finding the house with a light in it and quilts over the windows, etc., and says he could hear the cards being dealt, the money rattling, and could hear talking in the room. That he heard some one say, “I’ll open it for a dollar,” and heard Jess Farley say, “ITL raise you a quarter.” Jess Farley asked how many cards he wanted, and the answer was “One.” That they stayed outside and listened for about 30 minutes, when they broke in. That Farley, Alexander, McOanne, appellant, and Stallings were in the room. That none of .these five men lived at this house. He also testified to finding the cards, and that the bed was alongside of the table, and a man could sit on the bed and be right against the table. That he heard money rattling, and the shuffling and dealing of cards, as plain as if he looked right at them.

Appellant earnestly insists that this evidence is insufficient to sustain a conviction against this defendant. If there was only one count in the information — that is, appellant was playing at á game with cards — his contention would be sound, for the testimony is perhaps insufficient to sustain a conviction against any of the five for playing cards, other than Jess Farley and one other. But the testimony, we think, conclusively shows or at least the circumstances are such that would authorize a jury to find, that a game of cards was being played in this room, and that appellant was present knowing that it was being played, and as one of the counts charges him with “knowingly going Into and remaining at a place where a game of cards was being played, which place was not a private residence occupied by a family, he then and there knowing that said game was being played,” the evidence will sustain a conviction under this count, unless it should be held that the place where the game was being played was a private residence occupied by a family at that time. The evidence would justify a jury in finding that a card game had been going on for at least a half hour, and that appellant was present during all that time.

Appellant refers us to some six cases, under the holdings of which he claims that the evidence is insufficient to sustain the v'erdict; the principal one upon which he seems to rely being Fallwell v. State, 48 Tex. Or. It. 35, 85 S. W. 1069. In that case no one heard Fallwell’s voice making any remark that would indicate he was in the game. It was the voice of Pearce that was heard to say, “Give me three cards,” and if Pearce’s case had been on appeal, there would have been no holding that the evidence was insufficient. So, in this ease, if appellant was only charged with playing cards, then the Fallwell Case would ÜS in noint, and he should have been acquitted; but appellant in this case is also charged with knowingly going into and remaining at a place where a game of cards was played, and the verdict, being general, can and should be applied to that count in the information. Isaacs v. State, 36 Tex. Or. R. 505, 38 S. W. 40; Shu-man v. State, 34 Tex. Or. R. 69, 29 S. W. 160.

It is also urged that the court erred in permitting Sheriff King to testify that, in a talk with Farley, Farley had said that certain of the boys did not play; that Alexander was standing near. If appellant had been alone on trial, his objection’should have been sustained, and it would have been error not to have done so. But the record discloses “that in this case the state of Texas and defendants agreed to submit the cases of all the defendants for your consideration.” As the eases against four defendants, including Alexander, were tried at one time, the evidence was admissible against Alexander, and, being admissible against him, the court did not err in overruling the objection. It would have been proper to have instructed the jury that they should not consider such testimony in passing on the guilt or innocence of Stallings, Sloan, and McOanne, as it was a remark made after the commission of the offense (if an offense was committed), out of the presence of these latter three; but, this being a misdemeanor, no request being made that such instructions be given, it was not incumbent on the court to give such charge, or any charge, to the jury. Article 719, White’s Ann. Code of Oriminal Procedure ; Waechter v. State, 34 Tex. Cr. R. 297, 30 S. W. 444, 800; Killman v. State, 2 Tex. App. 222, 28 Am. Rep. 432; Oarr v. State, 5 Tex. App. 153; Hobbs v. State, 7 Tex. App. 117; Murray v. State, 38 Tex. Cr. R. 677, 44 S. W. 830.

This brings us to the most serious question in the case. Henry Cantrell testified that he was a married man, and that he had been living at this house since February 1st last; the game of cards being alleged to have been played on the night of April 12th. He further .testified that he and his wife were not at home on the date the game of cards was played; that his wife had been out at her mother’s for about .two weeks, and he-had gone out there on Saturday before, returning Monday — tiie game of cards having been played on Sunday night, while he was at his mother-in-law’s home. He further .testified that he had given the hoys permission to go to his home and play dominoes. Under our statute it is no offense to play cards at a private residence occupied by a family, unless commonly resorted to for gaming, and appellant earnestly insists that the house where this card-playing took place was the private residence of Henry Cantrell, and within the meaning of the law was at the time occupied by a family. On the proper construction of this statute depends whether or not this conviction should he sustained. As applicable to this case article 548 of the Penal Code reads:

“If any person shall play at any game of cards * * * at any place except a private residence occupied by a family * * * he shall be fined not less than ten dollars nor more than twenty-five dollars,” provided the provision that permits gaming at a private residence shall not apply if the residence is one “commonly resorted to for * * * gaming.”

What was the object, intent, and purpose of the Legislature in so providing? It was to exempt' the members of a family from prosecution, should they see proper to engage in a social game of cards, and the exemption carried with it exemption for such of their neighbors and friends as they might invite into their home to engage in a game with them. ’ The number of times such games might be played is not the sole criterion to judge whether or not it was commonly resorted to for gaming. A man might have his neighbors and friends in his home frequently to engage in a social game of cards with him, if their object and purpose was not to engage in what might be termed as gambling for money — that being the main purpose— and violate no law. The statute was to protect the sanctity of the home, and let each member of society seek pleasure and enjoyment in this manner if he saw proper in his own home. But if a man were to throw the doors of his home open to any and all who desired to enter therein for the purpose of gambling with cards, and it was so known, it would not be the number of times that cards were played that would make it a common resort, but the fact that he had opened his doors for any and all persons to gamble with cards which would evidence a violation of the law. Of course, evidence that this was continuously or frequently done would add additional strength to the evidence; but under the exemption in the statute no person is authorized to open his doors to the public at large indiscriminately for the purpose of gambling with cards. A man, his friends, and invited guests may engage in social games of cards in his home and violate no law; but no man can make a gambling house out of his residence and escape the penalty of the law, and each case must stand upon the facts and circumstances in that case.

In this case these young gentlemen go to the house of Mr. Cantrell, when they know that all members of the family are absent from home, and apparently go there because of this fact. Mr. Cantrell says he gave them permission to go there and engage in a game of dominoes; but there is not the slightest intimation in the record that he invited them, or gave them permission, to go to his home and for the time being turn-it into a gambling room and engage in playing cards, betting money thereon. They sought nor asked no such permission, and the fact they knew they had no permission to do so is evidenced by the fact that they closed the doors and spread quilts over the windows and other openings, that they might not be seen while engaged in this unlawful gambling. Having obtained permission to enter this house by false pretenses, it was the same as though they had no permission, and they became mere naked trespassers. It was not the intent of the Legislature to exempt such game from the provisions of the law, and such construction would do violence to the whole spirit and intent of the statute. Their going to this house when they knew Mr. and Mrs. Cantrell were absent from home, and without permission, and without the knowledge of Mr. and Mrs. Cantrell, to deliberately engage in gambling with cards, the persons who did so would violate the law, for such house at such time and under the circumstances herein shown would not be a private residence occupied by a family within the spirit and intent of the law. And as the evidence — circumstantially at least — amply sustains a finding that at least Parley and another member of the party were engaged in gambling with cards on this occasion, and that appellant at least knowingly went into and remained in this place while such gambling took place, we will not disturb the verdict. If either of the young men had resided at this house, and invited the others to engage in the game with him, we might arrive at a different conclusion; but none of them lived at this house, and had selected a time to go there and engage in this game when they knew that the occupants of the house were absent and it was being occupied by no family at that time. Por further discussion, see Stallings v. State, 170 S. W. 159, decided at this term of court.

The only other contention in the record is that state’s counsel referred to the failure of defendants to testify in his address to the jury when he said “that the testimony of the witness Cantrell was all the testimony that the defendant had brought to contradict the state.” This is a mere recitation of a fact, and it would have to be a strained construction that would make it refer to the failure of the defendants to testify, for Mrs. Cantrell and perhaps a number of other persons could have been called, who could have testified to the same facts as did Mr. Cantrell, if true'.

Again, it is contended that he so referred when he said:

“Surely these defendants were not up there perpetrating a joke on the officers; up there housed in, as they were, with a quilt over the window and the door latched — surely they were not there to perpetrate a joke on the officers. And, gentlemen, they brought no evidence that it was a joke.”

Doubtless these remarks were made in reply to argument of counsel for the defense; but, if not, it is not such a direct or indirect reference to the failure of defendants to testify as would necessitate a reversal of the case. If they were in fact perpetrating a joke, there might be a number of ways this could be shown without either of them being called to testify. The record does not exclude such fact.

After careful consideration, we have come to the conclusion that the judgment should be affirmed; and it is accordingly so ordered.  