
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.)
    T. Criminal Law (§ 508)—Accomplices— Incompetency—Indictment for Same Offense. •
    To make a witness incompetent under Code Or. Proc. 1879, art. 731, providing that persons charged as principals, accomplices, or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, the persons must be charged with the identical criminal act, and not merely with a similar act.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 508; Witnesses, Cent. Dig. §§ 244r-248.]
    2. Criminal Law (§ 507%)—Evidence—Ac-complice— Competency.
    A mere statement by the county attorney that a witness was incompetent because he was under indictment charged with the same offense as accused would not authorize the rejection of the witness without requiring proof of that fact.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. § 507%.]
    3. Gaming (§ 98)—Prosecution—Sufficien-cy of Evidence,
    Evidence in a prosecution for gambling held not to sustain a conviction.
    [Ed. Note.—For other cases, see Gaming, Cent. Dig. §§ 291-297; Dec. Dig. § 98.]
    Appeal from County Court, Johnson County; J. B. Haynes, Judge.
    Bob Thomas was convicted of gambling, and he appeals.
    Reversed and remanded.
    Phillips & Bledsoe, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes-
    
   DAVIDSON, P. J.

Appellant was convicted of gambling; his punishment being assessed at a fine of $10.

1. A bill of exceptions recites that Richard Gee was sworn as a witness to testify in behalf of defendant. The county attorney objected to his testifying because he was under indictment charged with the same offense. The objection was sustained by the court, and the witness was not permitted to testify. Appellant urged objections, and the bill recites that, if the witness had been permitted to do so, he would have testified that he was present at the time and place of the alleged game of cards, and that defendant did not play at any game of cards at the time and place alleged in the information, and that no game was being played at such place. Under the recitations of this bill, we are of opinion the court was in error. See the cases of Day v. State, 27 Tex. App. 143, 11 S. W. 36, and Traylor v. State, 23 S. W. 798, both directly in point. See, also, Seeker v. State, 28 Tex. App. 479, 13 S. W. 774. The Day Case was approved in Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782. In the Day Case the court said: “Appellant proposed to prove a material fact by several witnesses. The state objected upon the ground that the proposed witnesses were incompetent. The presumption being in favor of competency, the state must show incompetency. This was not done in this case.” Further speaking of this question, the court said: “Article 731, Code Criminal Procedure, provides that persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another. The proper rendering of the article is that persons charged as principals to the same offense, or accomplices or accessories to the same offense, either in the same indictment or in different indictments, cannot be witnesses for one another. An offense is an act or omission forbidden by positive law, to which is annexed, on conviction, any punishment prescribed in this Code. Article 52, Penal Code. In this case the prohibited act is betting at a game played with dice. Now, to render incompetent, the witness must be indicted as principal, accomplice, or accessory to the same act for which defendant is indicted. The transaction must be the same. A similar act will not suffice. To illustrate: A game of poker begins at dark, and the playing is continued all night. During the night a number of persons participate in the game, but not with each other or at the same time. Now, if one should be indicted, those who did not play with him, or play at the game at the same time at which defendant played or bet, would not be incompetent.” Then follows the first extract quoted from the opinion set out above.

The objection of the prosecuting officer is not a statement of the fact that appellant was indicted for the same offense. In order to render this bill sufficient, it must show as a fact that the witness was incompetent. The mere statement from the officer that he was incompetent does not make that a fact. It was his ground of objection to the witness testifying. Traylor v. State, 23 S. W. 798.

2. There is a still more serious error as we understand the fact; that is, that the evidence does not show that appellant played cards—in other words, that the evidence is insufficient to make out a case. The witness Reid testified that he was deputy sheriff of Johnson county; that on 20th of August, being Sunday afternoon, he, in company with another deputy, had occasion to go into an alleyway which runs east and west between two named streets in the city of Cleburne. John Anderson lived in a house fronting on one of these streets on north side of the alley. There was a servant’s house on the west end of the lot; the residence being on the east and fronting one of the streets. When near the servant’s house, he noticed a door partly open and walked up to it. Defendant and Gee were lying on a bed in this servant’s bouse. They were lying crossways of tbe bed. Appellant was near tbe bead of tbe bed and Gee toward tbe other end. As they approached tbe door, be saw appellant, and saw him quickly put a card case under the pillow, and Gee stuck something under the quilts of tbe bed. In going into tbe room be ordered them to get up, and asked them what they were doing. They replied, “Nothing.” Witness turned down tbe pillow and found a card case. He looked under tbe quilts and found a deck of cards; also found a dime under tbe cloth on tbe bed about where it would have been between tbe two men. He took them to town with him. He took them to the sheriff’s office, and phoned for tbe assistant county attorney. He subsequently arrested defendant and filed this complaint. Upon cross-examination be said be did not see defendant playing cards, but, as be approached, be saw appellant stick a card ease under tbe pillow, and subsequently found tbe cards under tbe quilts. This was in the servant’s house occupied by Johnson Anderson and bis wife. This was about 4 o’clock in tbe evening. He did not tell appellant what be wanted with him until they reached tbe sheriff’s office. Appellant asked him several times why be wanted him, but witness made no answer. Upon reaching the sheriff’s office, be told him that be arrested him for playing cards at that bouse, and appellant denied playing cards, and insisted be bad not been playing cards, and asked tbe officer to search him to show that be had no money with which be could have been gambling. Tbe officer did not search him. He says: “I did not see them playing cards that afternoon; but arrested them for reasons stated.” This is tbe state’s case' in its entirety.

The witness Farr testified that be was tbe negro cook for Mr. John Anderson at his residence. The servant’s house was on tbe lot, and in which be, witness Farr, slept and lived. It was Sunday afternoon when tbe arrest occurred. He was not at home at that time, but bad been there all day until after dinner Sunday, when be went away. Before leaving home he went to bis house and sat down, and played some cards. They were his cards, and they were the cards that Mr. Reid, the state witness, bad. After playing a while be put tbe cards under tbe cover or under tbe mattress. “Tbe case was up at tbe other end of tbe bed, and I think under a pillow when I left. There was no one there at that time but myself.” He says be had known appellant for years, and sometimes be comes to bis bouse to visit him, that the bouse was tbe servant’s bouse in which be lived, and had a bed and dresser and such things in it, and is about 50 feet from where the white people live.

Appellant testified in bis own behalf: That be was at this servant’s bouse on tbe occasion mentioned. That when he went there Farr, tbe former witness, was not at home, but be found Richard Gee lying on the bed. The door was open, and be told him to come in. He went in and laid down across tbe bed on which Gee was also lying. He had been lying there just a few minutes when Mr. Reid came to the door. “I saw Mr. Reid coming down the alley long before he got to the house. We were not playing cards, and had not been playing cards. I did not play cards there that day. If there were any cards there, I did not know it. I was on the west end of the bed, and Richard Gee was on the east end. I did not have a cent of money to play cards with. When they told me they had arrested me for playing cards, I was so surprised, and I then tried to get Mr. Reid to search me and see that I had no money. He would not do it. I did not play at or bet at a game played with cards that day. I did not put that card case under the pillow. I did not see or have that card case. If there was any money on the bed, it did not belong to me. I did not have any money.”

This is the record so far as the statement of facts is concerned. Without a discussion of the evidence, we hold under the authorities as applied to this evidence the state has not made out a case. Hanks v. State, 54 Tex. Cr. R. 1, 111 S. W. 402, 17 L. R. A. (N. S.) 1210; Bueas v. State, 57 Tex. Cr. R. 198, 122 S. W. 387; Looper v. State, 56 Tex. Cr. R. 498, 120 S. W. 880.

For the reasons indicated, the judgment is reversed, and the cause is remanded.  