The opinion
ON MOTION FOR REHEARING.
MORRISON, Judge.
A supplemental transcript containing appellant’s objections to the court’s charge has now reached this court.
By paragraphs 15, 16, 17, 18 and 19 thereof, the court’s charge is objected to because it failed to submit appellant’s affirmative defense to the effect that if a banking game was in progress but he participated therein only as a player, he would not be guilty.
*398 Appellant relies upon Judge Hawkins’ opinion on rehearing in Johnson v. State, 94 Tex. Cr. R. 80 , 249 S. W. 1069 , as supporting his contention that he was entitled to such affirmative defensive charge.
It is obvious, from the opinion in that case, that appellant admitted that a banking game was in progress on the occasions in question, but claimed that he participated therein only as a player. In order to be certain that these were the facts before Judge Hawkins, we have re-examined the statement of facts in that case and find, from appellant’s testimony therein, the following: “A fellow by the name of Alex was banking' it the second time I was there.”
The facts in the case at bar, however, are different. We find, from appellant’s testimony, the following:
“Q. * * * was that game being operated as a banking game? A. No, sir.”
It is obvious that the affirmative defense raised in the Johnson case is not supported by the evidence in the case at bar, and the Johnson case is not here controlling.
We pass, then, to appellant’s defensive theory that the game in question was just a social crap game and that he participated therein as a player.
We find the court’s charge to have amply covered this defense. One paragraph thereof reads as follows: “You are instructed that even though you may believe that a dice game was being played on some or all of the dates mentioned in this charge, on which money was being bet, yet you cannot convict the defendant in this case if such dice game was played on the basis of every participant playing and betting with others on the same basis, and in no event can you convict the defendant in this case unless you believe from the evidence beyond a reasonable doubt that a gaming table or bank was then and there being kept for the purpose of gaming, having a keeper or keepers, based on the principle of one against the many and in which the keeper or keepers wagered against the bettors directly or indirectly and that the same was displayed for the purpose of obtaining bettors.”
Appellant contends that the above-quoted paragraph authorized a conviction of appellant whether he was connected with *399 the keeping of the game or not. The rule is well established that the charge must be construed as a whole. We find that the court in the preceding paragraph amply told the jury that they must believe beyond a reasonable doubt that this appellant, acting with others, kept a gaming table or bank, and unless they did so believe, they should acquit him.
We find in the record an index to the bills of exception which reached the court as a separate instrument after the rendition of our original opinion herein.
This is an effort to amend the statement of facts in this court and cannot be considered.
Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.