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55 Tex. Crim. 47

115 S.W 37

Taylor v. State

Court of Criminal Appeals of Texas · decided 1908-06-24

<p>1. —Gaming—Charge of Court—Ten-Pin Alley—Alley Fees—Betting.</p> <p>Where upon trial for gaming on a ten-pin alley, the State’s evidence was that defendant permitted games on his ten-pin alley and that the loser paid the fees, and the defense admitted playing but denied that the loser paid the alley fees, and there was no direct betting proved, the court properly charged that betting could be proved independent of conversations between the parties with reference thereto, and defined the legal meaning of the term betting, tjie charge was not on the weight of evidence and there was no error. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Requested Charges—Alley Fees—Custom.</p> <p>Upon trial for gaming on a ten-pin alley, there was no error in refusing requested charges with reference to the custom of witnesses in paying fees for rolling ten-pins, and that such custom requiring the losing man to pay the fees was not in itself an offense unless this custom was the custom of defendant; there being a conflict of testimony on this issue. Davidson, Presiding Judge, dissenting.</p>

Decided 1908-06-24

¶1 ON REHEARING.

¶2 December 12, 1908.

DAVIDSON, Presiding Judge.

¶3 The judgment was reversed and remanded on two propositions at the recent Austin Term. The State files motion for rehearing alleging error on both grounds. The first was based upon the alleged error of the court giving certain charges, set out in original opinion. The second was based upon rejection of requested instructions asked by appellant. This charge is found also in original opinion. In support of the State’s contention in regard to the special charges given by the trial court, we are cited to the case of Rainbolt v. State, 51 Texas Crim. Rep., 153. An inspection of that case supports1 the contention of the State. The writer believes that while a bet may be made without express agreement, yet the charge" as given and set forth in the original opinion is on the weight of evidence. My brethren, however, take a different view and think it is not upon the weight of evidence, and sufficiently presents the matter mentioned in the charge, and is, therefore, correct. Following their views of the matter, the motion for rehearing will be granted upon that ground.

¶4 The second ground of the motion for rehearing is based upon what the State contends to be error in the original opinion holding that the court erred in refusing to give the requested instructions. My brethren are of opinion that this contention is also correct, and in accord with their views the motion will be granted on that proposition.

¶5*50 The writer believes that the facts authorize the instruction requested and refused, and that the instruction was directly pertinent to the issues and should have been given.

¶6 The motion for rehearing is granted, the reversal is set aside, and the judgment is affirmed.

¶7 Affirmed.

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