Opinion
No. 695.
Decided May 17, 1911.
1. — Gaming — Statement of Facts — County Court — Stenographer.
In County Court cases, where there is no court stenographer, the County Court has no power or authority to grant a longer time than twenty days within which to file a statement of facts and bills of exception; and where this is done the same can not be considered on appeal.
2. — Same — Constitutional Law — Information.
Article 388f of the Act of the Thirtieth Legislature, upon the subject of gaming, is not unconstitutional, and is neither in violation of article 3, section 35, of the Constitution of Texas, nor article 1, section 3, of said Constitution, nor article 4, section 2, nor article 14, section 1, of the Constitution of the United States, and an information which conformed to said article 388f in alleging the offense is sufficient.
3. — Same — Requested Charges.
In the absence of a statement of facts and bills of exception, excluded special charges can not be considered on appeal.
Appeal from the County Court of Karnes. Tried below before the Hon. A.J. Parker.
Appeal from a conviction of unlawfully and knowingly going into and remaining at a place where a game of cards was played, not at a private residence, etc.; penalty, a fine of $25.
The opinion states the case.
No brief on file for appellant.
C.E. Lane, Assistant Attorney-General, for the State. — Cited Rasor v. State, 57 Tex.Crim. Rep., 121 S.W. Rep., 512; Walters v. State, 58 Tex.Crim. Rep., 125 S.W. Rep., 11.
The appellant was charged by complaint and information with unlawfully and knowingly going into and remaining at a place where a game of cards was being played, which was not at a private residence occupied by a family, and that he knew that said game was being played; was convicted and his fine assessed at $25. The prosecution and conviction was under article 388f, as amended by the Act of 1907, p. 109.
The County Court convened on August 16 and adjourned on September 4, 1909. The trial was had on August 19, 1909. The motion for new trial and in arrest of judgment were both overruled on August 24, 1909, at which time the court entered an order giving thirty days in which to file statement of facts and bills of exception. The statement of facts and bills of exception were not filed until October 4, 1909, more than thirty days after the final judgment, and twenty-nine days after the adjournment of court.
It has been the uniform holding of this court that in County Court cases, where there is no court stenographer, the County Court has no power or authority to grant a longer time than twenty days to file statement of facts and bills of exception.
It has also been the uniform holding of this court not to consider statements of facts or bills of exception when filed after twenty days, as above stated. It is unnecessary to cite the cases on either of these propositions.
1. By his motion for new trial and in arrest of judgment, appellant contends: First, that the information does not set out any offense against the laws of Texas; second, that article 388f of the said Act of the Thirtieth Legislature is in violation of article 3, section 35 of the Constitution of Texas, because the subject of said article is not embraced in the title of said Act of the Legislature.
The complaint and information do correctly charge an offense in strict conformity with said article 388f. It has been repeatedly held by this court that the said Act and article are not unconstitutional on the ground above stated. Parshall v. State, and cases therein cited. This case has not yet been published.
2. The next ground is that the said article 388f is unconstitutional because in violation of article 1, section 3 of the Constitution.
3. The next two grounds are, because said article is in violation of article 4, section 2, and article 14, section 1, of the Constitution of the United States. It is our opinion that this Act is not unconstitutional on any of these grounds.
4. None of the other questions raised can be considered without a statement of facts and bills of exception. This also includes the special charges requested.
The complaint and information being regular, and strictly in accordance with said article 388f, and the charge of the court submitting the case conforming thereto and is in accordance therewith, and there being no error pointed out, which we can consider, the judgment is affirmed.
Affirmed.