11 S.W. 36
DAY 
v. 
STATE.
Court of Appeals of Texas.
January 30, 1889.
Page 37
        Appeal from Freestone county court; T. W. SIMS, Judge.
        Gabe Day, convicted of betting at a game played with dice, appeals.
        Asst. Atty. Gen. Davidson, for the State.
        HURT, J.
        This conviction was for betting at a game played with dice called "craps." The indictment fails to 
allege that the appellant played the game with another or bet with another person. This is not necessary 
to its sufficiency, but is material with respect to another question.
        On the trial the defendant proposed to prove an alibi by R. Cooper and others. The state objected 
because they were in a separate bill or bills indicted for betting at "craps." The evidence on this matter 
was that the game on the night of August 24, 1888, began about dark, and continued until daylight next 
morning, and that Cooper and the others participated during the night in the betting at the game called 
"craps." Now, it will be observed that it is not shown that the proposed witnesses bet with defendant or at 
the game at the same time that defendant bet or played. Looking to the definition of the offense, we will 
find that to bet at any game that can be played with dice is an offense. Let the game be called by 
whatever name it may be, or without a name, if played with dice, and a person bets at it, — that is, on 
the result, — he would be guilty of an offense. It is seen that this is not a continuous offense, but one bet 
at this game completes the offense.
        Article 731, Code Crim. Proc., provides that persons charged as principals, accomplices, or 
accessories, whether in the same or in different indictments, cannot be introduced as witnesses for one 
another. The proper rendering of the article is that persons charged as principals to the same offense, or 
accomplices or accessories to the same offense, either in the same or in different indictments, cannot be 
witnesses for one another. An offense is an act or omission forbidden by positive law, to which is annexed, 
on conviction, any punishment prescribed by this Code. Pen. Code, art. 52. In this case the prohibited act 
is the betting at a game played with dice. Now, to render incompetent, the witness must be indicted as 
principal, accomplice, or accessory to the same act for which defendant is indicted. The transaction must 
be the same, — a similar act will not suffice. To illustrate: A game of poker begins at dark, and the playing 
continues all night. During the night a number of persons participate in the game, but not with each other, 
nor at the same time. Now, if one should be indicted, those who did not play with him, or play at the same 
game at the same time at which defendant played or bet, would not be incompetent. Appellant proposed 
to prove a material fact by several witnesses. The state objected, upon the ground that the proposed 
witnesses were incompetent. The presumption being in favor of competency, the state must show 
incompetency. This was not done in this case.
        But it is urged that these witnesses could not be compelled to criminate themselves. That was a 
matter with them, and not the state. Nor was this a necessary or probable result, for they could have 
sworn to the facts sought to be elicited without self-crimination, though they may have been guilty 
themselves of the same offense as that charged against appellant. Under the facts as presented in the 
record, we are of opinion that the court erred in holding these witnesses incompetent. Reversed and 
remanded.