The indictment contains three counts; the first charging appellant with betting at game played with dice, not then and there being played at a private residence; and the second for permitting a game with dice to be played upon his premises or premises then and there under his control, being a public place, to wit: a place where persons resort for the purpose of gaming; and third, did unlawfully bet at a game played with dice, called craps, said game then and there being bet at by said Waggoner at a public *261 place to wit: at a place where people resort for the purpose of gaming. It was tried before the court without a jury. Judgment was entered against him for $25. The evidence shows that appellant had rented the house and was living in it as a private residence. The facts further show that there was a good deal of playing in the house with dice, and cogently show that the game was a banking game. He was not charged with exhibiting a banking game, so that passes out of the case, and a conviction could not be had on that theory. As the evidence shows that the house. was a private residence he could not be punished for playing dice, as it is not a violation of the law to play games of dice at a private residence under our statute. We deem it unnecessary to go into a discussion of the matter as the record is presented as above stated. The judgment is reversed and the cause remanded.

Reversed and remanded. .