The opinion
The foregoing opinion was prepared by Judge KRUEGER of the Commission of Appeals for the Court of Criminal Appeals. Believing he has reached a correct conclusion regarding the question presented, his opinion is adopted and approved as the opinion of the court, with the following additional observations.
Article 625, P. C. (formerly article 559), was enacted in 1907, and carried forward under its present number in the revision of 1925. Two years after Article 625 was enacted the Legislature enacted several articles which were carried forward in the 1925 revisions as Articles 647, 648, 649, 650 and 651, by which one was penalized who engaged in pool selling, or assisting in pool selling, or bookmaking on horse races. Violations of these statutes were made misdemeanors, and were not offenses when Art. 625 was enacted, and did not become so until 1909; therefore, could not have been in contemplation when Art. 625 was enacted. Apparently from the legislation in this State bearing upon the subject in hand, a distinction is made between the penalties for facilitating bets and gambling on horse races, and facilitating betting and gambling on other things. Whether the distinction is wise or not does not so much concern us, for the legislature may correct any defect that may appear to it necessary. This court cannot exercise legislative functions. In our opinion the prosecution should have been under one of the statutes forbidding facilitating bets on horse races, namely, Arts. 647 to 651 P. C., and the present prosecution under Art. 625 can not be upheld.
DISSENTING OPINION.