Opinion
No. 25193.
March 14, 1951. Rehearing Denied April 18, 1951. Rehearing Denied May 9, 1951. See 239 S.W.2d 109.
Appeal from the District Court, Potter County, Henry S. Bishop, J.
McCarthy, Snodgrass, Aikman Haynes, George S. McCarthy, Amarillo, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was assessed a fine of $500 and four months in jail for a violation of the gambling law described in Article 652a, Vernon's Ann.P.C.
The attack first made is on the indictment, charging that it was duplicitous and joins in the same count four separate offenses in that he placed bets upon four different football games. Nevertheless, the indictment describes but one offense. See Simmons v. State, 135 Tex.Crim. R., 120 S.W.2d 1061; and Odle v. State, 139 Tex.Crim. R., 139 S.W.2d 595.
The facts disclose that a reporter for an Amarillo newspaper was assigned by his employer to go to the Roosevelt Bar and secure a picture, ostensibly for news service. His purpose and instructions went further, however, and may be considered an investigation of the gambling activities of the appellant, who was the keeper of the bar. From an employee at the bar the reporter secured a 'parley card'. One side of this card reads as follows:
"(State's Exhibit No. One)
No. 371303
3 Teams . . . . . . . . . . . 5 Points 4 Teams . . . . . . . . . . 10 Points 5 Teams . . . . . . . . . . 15 Points 6 Teams . . . . . . . . . . 25 Points 7 Teams . . . . . . . . . . 40 Points 8 Teams . . . . . . . . . . 60 Points 9 Teams . . . . . . . . . . 90 Points 10 Teams . . . . . . . . . 150 Points 9 Out of 10 . . . . . . . . 20 Points ______________________________________________
Encircle the Teams You Select — All of Which Must Win — Tie Loses
Since 1935 __________
"The Original" Red and Gold Weekly Football Schedules" _________________________________________________
On the reverse side is the following:
"Circle Teams Clearly Games Must Be Played
Saturday, September 24, 1949
1 Wm. Mary 2 Pittsburgh Even 3 U.C.L.A. 4 Iowa Even 5 Oregon St. 6 Utah Even 7 Penn St. 8 Villanova (Plus) 6 9 (Kansas) 10 Colorado " 7 11 Rice 12 Clemson " 7 13 Vanderbilt 14 Geo. Tech " 7 15 Kentucky 16 L.S.U. " 7 17 Tex. A. M. 18 Tex. Tech. " 7 19 Tulane 20 Alabama " 10 21 Northwestern 22 Purdue " 12 23 Holy Cross 24 Georgetown " 13 25 Wisconsin 26 Marquette " 13 27 Michigan 28 (Mich. State) " 13 29 North Car. 30 No. Car. St. " 13 31 T.C.U. 32 (Okla. A. M.) " 13 33 S.M.U. 34 Wake Forest " 13 35 Virginia 36 Geo. Wash. " 13 37 Stanford 38 Harvard " 14 39 So. Cal. 40 Navy " 14 41 Ohio State 42 Missouri " 14 43 Minnesota 44 Washington " 20 45 Baylor 46 (S. Carolina) " 20 47 Tennessee 48 Miss.St. " 20 49 Oregon 50 Idaho " 20 51 California 52 St. Mary's " 21 53 Illinois 54 Iowa State " 27 55 Notre Dame 56 Indiana " 27 57 Tex. 58 Temple " 33 _____________________________________________________________
(The names enclosed in parentheses in above Exhibit indicate those teams encircled by pencil on the original card Exhibit.)"
To the numbered card was attached a stub with corresponding number. The reporter carried the card to the office of the newspaper, marked four names in accordance with instructions, he then delivered the card to appellant stating: 'I would like to place a bet on the football parley.' He tendered $1 which was accepted by appellant, together with the card. Appellant tore the stub from the card and returned a portion to the witness.
In our opinion this was a completed bet, as shown by the foregoing evidence, regardless of the procedure which was to follow. The witness understood that he would receive $10 in the event he had correctly placed his bet on the four names. The appellant did not testify and made no denial of any fact which the witness stated, nor did he refute the implication testified to by the witness. The contention is here made by appellant that the evidence is insufficient to support the conviction in that it fails to show that a bet was made. We do not agree with this contention. For a discussion of the meaning of the terms 'bet' and 'wager', in such case, see Odle v. State, 139 Tex.Crim. R., 139 S.W.2d 595.
In the absence of any contradiction of the understanding which the witness testified they had, we are of the opinion that the offense is sufficiently shown and the judgment of the trial court is accordingly affirmed.
On Motion for Rehearing.
The several bills of exception were filed in the trial court more than 30 days after the notice of appeal, and no order extending the time for their filing had been entered in the record when this case was before us on original submission.
It appears that the trial judge, at the time of overruling appellant's motion for new trial, noted on his docket that 90 days was allowed for filing bills of exception, but such extension of time was not shown in the blank space provided for such an extension in the order overruling appellant's motion for new trial nor elsewhere in the minutes of the court.
It appears that since the original submission of this appeal, by order of the trial judge, there has been entered in the minutes of the court an order nunc pro tunc overruling appellant's motion for new trial, containing his notice of appeal, and now containing an order of the trial judge granting 90 days to prepare and file his bills of exception.
The order extending the time for filing bills of exception must be entered of record, a notation on the docket granting additional time being insufficient. See art. 760, Sec. 5, Vernon's Ann.C.C.P.; Ayala v. State, 152 Tex.Crim. R., 214 S.W.2d 634.
And we are not permitted to consider the order entered nunc pro tunc, the trial judge having no authority to enter any such order while the case is pending in this court on appeal. See Murphy v. State, 133 Tex.Crim. R., 109 S.W.2d 488; Ayala v. State, supra.
We remain convinced that the appeal was properly disposed of on original submission.
Appellant's motion for rehearing is overruled.
Opinion approved by the Court.