
    Wiley Rainbolt v. The State.
    No. 3679.
    Decided March 13, 1907.
    Gaming—Charge of Court—Betting.
    Upon a trial for violating the gaming law, where the evidence showed that the parties played several games with the defendant and paid for both cues when they lost a pool game, but bad no express or implied agreement to do so, the court correctly charged that a bet might be made without words or acts or an express understanding between the bettors.
    Appeal from the County Court of Holán. Tried below before the Hon. A. B. Yantis.
    Appeal from a conviction of exhibiting a gaming table; penalty, a fine of $25. -
    The opinion states the case.
    
      O. D. Woodruff, for appellant.
    Smith v. State, 10 Texas Crim. App., 420; Voight v. State, 13 Texas Crim. App., 21; Wyers v. State, id., 57; Harris v. State, id., 309; Hogan v. State, id., 319; Holder v. State, id., 601; Buntain v. State, 15 Texas Crim. App., 490; Willis v. State, id., 118.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Appellant was convicted of exhibiting a gaming table, and his punishment assessed at a fine of $25 and ten days confinement in the county jail.

The following is the substance of the facts in this case: Edgar Simmons testified that he knew the defendant; that defendant was running a cold drink stand and sells “Tee-Totaler” and runs two pool tables in Sweetwater, in Kolan County, Texas. “I played several games of pool in defendant’s house during the holidays and prior to April, 1906. I played several games with the defendant, and I paid for both cues whenever I lost the game, and I played several games with other parties, and when I lost the game I always paid for both cues, and when the party I was playing with lost the game, he paid for both cues, and sometimes we paid other parties than the defendant who happened to be attending bar. Other parties who played there did the same way as far as I know. When I plajmd with defendant and lost the game, I paid for both cues. I never at any time, either expressly or impliedly agreed with any person who played pool with me that in the event I lost the game, that I would pay for both cues, or that I would pay for the cue of the party who was playing with me and who won the game; nor did the party playing with me ever at any time agree with me, either expressly or impliedly, that in the event he should lose the game, that he would pay for both games, or for my cue. I know of no one who expressly or impliedly agreed to pay for the cues when he lost the game, but as far as I know it was uniformly done.”

Appellant excepts to the following charge of the court: “Gentlemen of the Jury: you are further charged as the law applicable to this case that a bet under the definition as hereinbefore given you, may be made by acts without words and it is entirely unnecessary that there be an express understanding between the bettors, and the question as to whether or not a bet has been made is entirely independent of the parties thereto having any conversation between themselves with reference to the betting.” Objection to said charge is that same is on the weight of the evidence, and commented upon the testimony, and in effect told the jury that if parties played on defendant’s tables without any understanding either expressly or impliedly that the loser of the game should pay for all the games played, that it was betting under the court’s definition of a bet as given in the court’s charge to the jury. The charge of the- court with reference to bet is as follows: “The legal meaning of the term bet is the mutual agreement and tender of a gift of something valuable which belongs to one of the contending parties according to the result of the trial of chance or skill or both combined, and the question as to whether or not a bet has been made is entirely -independent of the parties thereto having any conversation between themselves with reference to the betting.” We think the charge of the court is correct. The charge is not on the weight of the evidence but applicable to the facts of this case. It would be a strong proposition if this court had to hold that before there could be a bet upon a gaining table, there should be mutual declaration on the part of the parties to that effect. We do not so understand the law.

The evidence is sufficient to support the verdict, and the judgment is affirmed.

Affirmed.  