
    WATSON v. STATE.
    (No. 5881.)
    (Court of Criminal Appeals of Texas.
    Appeal Dismissed.
    Oct. 13, 1920.
    Reinstated Nov. 10, 1920.
    Determined on Merits Dec. 1, 1920.)
    1. Bail &wkey;>66 — Recognizance on conviction of being interested in gaining house insufficient.
    On appeal from conviction of being interested in a house and building where gaming tables and banks were kept and exhibited for purposes of gaming, defendant’s recognizance, stating that he had been convicted of the offense of operating a gambling house, was insufficient; there being no such offense, eo nomine, and the recognizance not setting out the constituent elements of any offense known to Texas law.
    On the Merits.
    2. Criminal law &wkey;365(3), 369(15), 371.(1)— Testimony that defendant charged with interest in gaming house carried pistol inadmissible.
    In a prosecution for being interested in a gaming house, testimony of a raiding officer that when he arrested defendant the next day he found a pistol on him was inadmissible, not being part of the facts necessary to develop the res gestae, and not tending to connect defendant with the offense charged against him, nor. to shed light on his intent or identity.
    3.Criminal law <&wkey;814(12)— Requested charges as to reputation of gaming house properly refused in absence of testimony.
    In a prosecution for being interested in a gaming house, where there was no testimony offered as to the general reputation of the place, the trial court properly refused to give defendant’s requested special charges .that, while general reputation might be admissible to show the character of the place, it could not be used to establish defendant’s connection therewith.
    Appeal from District Court, Eastland County ; E. A. Hill, Judge.
    Noisy Watson was convicted of being interested in a house and building where gaming tables and banks were kept and exhibited for gaming, and he appeals.
    Judgment reversed, and cause remanded.
    Mays & Mays, of Et. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   Dismissal of Appeal.

LATTIMORE, J.

Appellant was convicted of being interested in a house and building where gaming tables and banks were, kept and exhibited for purposes of gaming, and his punishment fixed at confinement in the penitentiary for two years.

The recognizance made by appellant is insufficient. It states that appellant had been convicted of the offense of operating a gambling house. We have no such offense eo nomine, and said recognizance does not set out the constituent elements of any offense known to our law.

The appeal is dismissed.

On Motion to Reinstate.

This case was dismissed at a former day of this term, for want of a sufficient recognizance, and appellant has filed herein his motion, asking for leave to file a new recognizance or appeal bond, under such orders as the court may direct.

Leave is hereby given to appellant to file a recognizance in terms of law, as prescribed by article 903, of Vernon’s Code of Criminal Procedure, if the court below be in session at this time; and, if said court be not in session, then leave is .given appellant to file his appeal bond in terms of law, as required by article 904, of Vernon’s Code of Criminal Procedure —said recognizance, or bond, as the case may be, to be entered into and filed within 15 days after the making of this order, and a duly certified copy thereof to be filed with the clerk of this court not later than 20 days after the making of this order.

The clerk of this court will at once notify the attorneys for the appellant of this order.

On the Merits.

This case was dismissed by us at a former time, because of an insufficient recognizance. Appellant haying filed a sufficient recognizance, upon motion this case in reinstated, and now disposed of on its merits. The case must be reversed for the admission of certain testimony.

An officer named Thompson testified that he assisted in what might be termed a raid on the house herein alleged, and seemingly .proven to be a gambling house; the same being the house the keeping of which as a gambling house is herein charged against appellant. In the course of Mr. Thompson’s testimony, he stated that appellant was at said place at the time of the raid. He also stated that he arrested appellant the next day, and found a pistol on him at the time of his arrest. This testimony as to the finding of said pistol on appellant was objected to at the time, and its admission is here urged as error. That appellant had a pistol on the day after the raid seems in no way to shed light on the question as to whether he was interested in keeping said house as a gambling house. It is not shown that he was arrested at his home or at said house, and proof of the carrying of said pistol is not a part of the facts’ necessary to develop the res gestae of the charge of keeping said gambling house. It would inject into the case the commission of a different and extraneous offense by appellant, from which fact no legitimate benefit could result to the state, while it is easy to see that harm might result to appellant.

In Riggins v. State, 42 Tex. Cr. R. 472, 60 S. W. 877, evidence was admitted over objection that, on the day after the alleged crime charged against the accused, he was arrested and a pistol found upon him. This court said in its opinion in that case:

“This testimony was not admissible, since it proved a separate and distinct crime against appellant, in no way connected with, dependent upon, or illustrative of the crime for which he was then on trial.”

The rule is universally adhered to by this court that evidence of a separate and distinct offense is not admissible upon the trial of one charged with other offenses, unless it come within certain well-known exceptions to the general rule against the admissibility of testimony of such extraneous crimes. The testimony in question in the instant case did not tend to connect appellant with the offense charged against him, nor shed light on his intent or identity, or show any system. We are of opinion that it was inadmissible.

It is urged that the evidence is insufficient. The testimony is somewhat meager upon the question of appellant’s interest in the gambling house. There was no proof as to who owned or rented said house, or its furniture, or bought or obtained supplies for said place, or how many persons were habitually about the place, or resided there, or that appellant made it his place of business, or that he did not stay at another and different place in the town of Ranger. Possibly it could not be shown who carried the groceries or other articles of merchandise to said place, or who hauled out the furniture or paraphernalia, or was otherwise connected with the management or the running of said establishment. The very strength of the objection on the part of all good citizens to the kind of business being conducted by some one at the place raided by the officers should lead the state to extra efforts to support a case of this character by substantial proof, so that there be left no question as to whether the verdict be sustained, if obtained.

Appellant makes complaint of the refusal of the court to give certain special charges, the effect of which was to tell the jury that, while the general reputation might be admissible to show the character of the place,alleged to have been occupied, such testimony could not be used to establish appellant’s connection therewith. The trial court correctly refused said charges, under the facts in this record. There was no testimony offered as to the general reputation of the place; hence nothing of that kind could have been considered by the jury for any purpose, and the charges were uncalled for.

For the error mentioned above, the judgment will be reversed, and the cause remanded. 
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