Freestone County, Texas 
Court Case



18 S.W. 416


AVERHEART
v.
STATE.


Court of Appeals of Texas.


February 13, 1892.

Appeal from Freestone county court; A. G. ANDERSON, Judge.

Ruben Averheart was convicted of playing at a game of cards in a public place, 
and appeals. Reversed.

Gardner & Bell, for appellant. Richard H. Harrison, Asst. Atty. Gen., and J. D. 
Childs, for the State.

WHITE, P. J.

The indictment in this case charged that appellant "did unlawfully play at a 
game of cards in a public place, to-wit, at, in, near, and within view of the 
house of Clavin Smith, where people commonly resorted for the purpose of 
gaming and fighting." On the trial appellant was convicted, and his punishment 
assessed at a fine of $10. The evidence discloses that "the defendant and 
others, on Sunday, near the house of Clavin Smith, about 75 or 100 yards from 
the house, under some trees near a dug-out in an old field, congregated and 
engaged in playing at a game of `monte.' They had frequently met at or near 
this place before for the same purpose. On the occasion spoken of by the 
witnesses, some of the parties played at monte, while the others `shot craps' 
with dice, while some did not take any part in the game at all." All the 
testimony goes to show that the playing and betting was done at the banking 
game of monte. Monte, under our statutes, is known as and denominated a 
"banking game," or a game which is played, kept, dealt, or exhibited. It is 
one of the games that has a keeper, dealer, or exhibitor, and it is based upon 
the principle of the one against the many, — the keeper, dealer, or exhibitor 
against the betters. It is a game which cannot properly be said to be played 
with cards. Card playing is contradistinguished from gaming tables or banks, 
and, as we understand it, is where cards are played by all the parties engaged 
in the game against each other, or partners against other partners in the same 
game, and is not a game where the one — the banker or exhibitor — is arrayed 
against all the rest, either directly or indirectly. Pen. Code, arts. 358-363, 
define and describe games played at tables or banks, and in article 360 monte 
is mentioned as, eo nomine, one of the games included within the meaning of 
tables of banking games. The evidence in this case having established the fact 
that the parties were betting at a game of monte, and were not, as alleged, 
"playing cards," it fails to sustain the conviction under the indictment; and 
for this reason the judgment is reversed, and the cause remanded. All judges 
present and concurring.