
    PANYON v. STATE.
    (No. 9276.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law &wkey;!09l (I I) — Bill of exceptions in question and answer form "cannot be considered on appeal.
    Bill of exceptions in question and answer form cannot be considered on appeal.
    2. Criminal law <&wkey;>1091(2) — Biiis of exceptions, failing to state facts or circumstances surrounding matters complained of, are defective, and therefore insufficient.
    Bills of exceptions, failing to state facts or circumstances surrounding matters complained of, are defective, and therefore insufficient. '
    On Motion for Rehearing.
    3. Gaming &wkey;?96 — Not presumed1 that gambling for which accused was arrested and convicted was done at place other than accused’s home or premises.
    It will not be presumed that gambling for which accused was arrested and convicted was done at place other than accused’s home or premises.
    4. Indictment and information &wkey;>l69 — Testimony supporting one of severa! counts held admissible in absence of motion requiring state to elect count under which it desired to prosecute.
    Where one of six counts charging accused with various forms of keeping and permitting his premises to be used for purpose of gaming, charged that the gaming was accomplished by betting' and wagering at games of dice, testimony in support of the sixth count was admissible in the absence of motion requiring state to elect count under which it desired to prosecute.
    5. Criminal law <&wkey;372(3) — In prosecution for keeping gambling house evidence of prior convictions for gambling held admissible.
    In prosecution for keeping gambling house evidence that accused had been previously convicted of gambling elicited on his cross-examination held competent, there being no presumption that such gambling took place elsewhere that on his own premises.
    
      <g=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    
      Commissioners’ Decision.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Will Panyon was convicted of keeping a gambling house, and he appeals.
    Affirmed.
    Blain & Jones, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in. the district court of Jefferson county for the offense of keeping a gambling house, and his punishment assessed at confinement in the penitentiary for a term of two years.

The evidence is entirely sufficient to support the judgment. There are but three bills of exception contained,in the record, and each of these is in question and answer form and cannot be considered. In addition to this, each of them fails to state any facts or circumstances surrounding the matters complained of, and are also, for that reason, wholly defective and insufficient.

The appellant filed a motion in arrest of judgment in which he alleges that the defendant was convicted under the sixth count in the indictment, and that this count only charged a misdemeanor, and that therefore the district court had no jurisdiction of the case. This contention cannot be sustained. The sixth count in the indictment charged a felony, and the court, under proper instructions, submitted this count to the jury, and their verdict finding the defendant guilty thereon found support in the evidence in the case.

There is no error manifest by the record. It is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals ahd approved by the court.

On Motion for Rehearing.-

LATTIMORE, J.

Appellant complains in his motion of certain testimony that was elicited from him by the state on cross-examination in regard to his having been charged and convicted for gambling, it being insisted that the offenses proven were not felonies or misdemeanors involving moral turpitude. Appellant was charged, by six counts in the indictment with various forms of keeping and permitting his premises to be used for purposes of gaming; one of said counts charging that the gaming was accomplished by betting and wagering at games of dice. There was nothing in the questions asked appellant, which he answered, and which are complained of, which showed where the gambling took place for which he was arrestéd and convicted. There is no presumption that it was at a house or premises other than his own. If he was arrested and charged with betting at games with dice in his own house, and so confessed or admitted, this would be testimony legitimately tending to support the charge contained in the count above referred to. No motion had been made to require the state to elect as far as we can ascertain from the record. In such case the testimony objected to was admissible.

The motion for rehearing will be overruled. .  