#### Hank Emmons v. The State.

*No. 662.*

*Decided January 30.*

1. Statement of Facts—Stenographer’s Notes—Practice on Appeal.—By article 784, Code of Criminal Procedure, the statement of facts is required to be prepared and filed as in civil cases. Rule 78 for the District and County Courts (84 Texas, 719), provides, that “neither the stenographer’s notes taken upon the trial nor a copy thereof made at length shall be filed as a statement of facts; but the statement *99made therefrom shall be condensed throughout in accordance with the spirit of the foregoing rules upon the subject.” *Held,*that a statement of the facts, in violation of the rules in this particular, will be stricken from the record on appeal.

2. Trial Jury List—Number of Names Upon.—When, on the trial of a case in the County Court, the clerk handed defendant’s counsel a list containing the names of the eighteen jurors summoned and qualified for the week, and defendant excepted to the list, on the ground that only twelve jurors could be summoned for the week, *■Held,*that under the provisions of article 3031, Revised Statutes, the objection was without merit.

3. Gaming—‘‘Betting” at a Game—What Constitutes.—In gaming, a bet may be made by acts without words.

Appeal from the County Court of Tarrant. Tried below before Hon. Robert G. Johnson, County Judge.

This appeal is from a conviction for betting at a game played with dice, the punishment being a fine of $25.

The statement of facts contained the stenographer’s notes (questions and answers) of each of the witnesses examined at the trial. In the Court of Criminal Appeals the Assistant Attorney-General moved to strike out this statement, because “the same is in express violation of the rules of this court;” which motion was sustained, and the statement of facts stricken out.

On the trial in the court below the court charged the jury as follows: “Betting is when two persons put up money or other thing of value to go to one or the other on the happening of some event, as a game of cards or dice dependent on chance or skill. And the question as to whether or not a bet has been made is entirely independent of the parties thereto having any conversation between themselves with reference to the betting.” This charge was excepted to, and a requested instruction, which was refused, asked as follows, viz: “A bet within the meaning of our statute is a mutual agreement and tender of a gift of something valuable, which is to belong to one or the other of the contending parties, according to the result of the trial of chance or skill, or both combined.”

*Wilson*Gregg, for appellant.

*Mann Trice,*Assistant Attorney-General, for the State.

ON MOTION TO STRIKE OUT STATEMENT OF FACTS.

DAVIDSON, Judge.

Motion is made by the Assistant Attorney - General to strike out the statement of the facts incorporated in the record, because “the same is in express violation of the rules of this court,” in that it consists merely of the stenographer’s notes taken on the trial, containing in full questions asked of and replies given by the witnesses on the trial in the court below. Rule 78 requires, that “neither the notes of the stenographer taken upon the trial nor a copy *100thereof made at length shall be filed as a statement of facts; but the statement made therefrom shall be condensed throughout in accordance with the spirit of the foregoing rules upon this subject.” For rules for making up the statement of facts, see Rules 72 to 78, inclusive, prescribed for the District and County Courts (84 Texas, 719); and such statements must be made up in accordance with those rules. Ratcliff v. The State, 29 Texas Crim. App., 248. By reference to the Code of Criminal Procedure, it will be seen that statements of facts are to be made up in criminal as in civil causes. Article 784 of said Procedure provides: “If a new trial be refused, a statement of facts may be drawn up and certified and placed in the record as in civil suits.” When these rules have been violated in making up such statement, as in this case, this court will not consider same. Butler v. The State, 33 Texas Crim. Rep., 232. The motion is granted, and the statement of facts is stricken from the record, and it is ordered accordingly.

*Motion granted.*

Judges all present and concurring.

ON THE MERITS.

HURT, Presiding Judge.

The appellant in this case was convicted in the County Court for the offense of unlawfully betting at a game played with dice, and his punishment assessed at a fine of $25. The statement of facts in this case has been stricken out, and we adhere to our ruling in regard thereto. There is nothing in appellant’s contention contained in his bill of exceptions number 2 in regard to the panel of the jury. Article 3031, Revised Civil Statutes, settles this question against appellant. The court’s charge in defining what might constitute a bet is correct. A bet may be made by acts without words. There is nothing in the remarks of the county attorney improper.

The judgment is affirmed.

*Affirmed,.*

Judges all present and concurring.