Ballew v. State

9 S.W. 765, 26 Tex. Ct. App. 483, 1888 Tex. Crim. App. LEXIS 213

• Court: Court of Appeals of Texas
• Decided: November 24, 1888
• Docket: No. 2999
• Status: Published

Opinion

White, Presiding Judge.

Appellant was indicted under article 365, Penal Code, for unlawfully permitting “a game of cards to be played upon his premises, the said premises then and there being appurtenances to a public place, to wit, to a house for retailing spirituous liquors.” The indictment was good and sufficient under the statutes. (Penal Code, arts. 355, 365; Willson’s Crim. Forms, No. 247, and authorities cited in the note.)

It is contended that the county court had no jurisdiction of the case, because the fine affixed to said offense is not less than twenty-five nor more than one hundred dollars, and that the same came exclusively within the jurisdiction of the justice’s •court. County courts have concurrent jurisdiction with justices’ courts of misdemeanors cognizable in justices’ courts. (Willson’s Crim. Stats., sec. 1541; Solon v. The State, 5 Texas Ct. App., 301; Chaplin v. The State, 7 Texas Ct. App., 87; Galloway v. The State, 23 Texas Ct. App., 398.)

But we are of opinion that the evidence does not support the allegation that the premises were appurtenances to a public place. The room in which the playing was done was not an appurtenance, but was a part of the liquor saloon itself. (Stebbins v. The State, 22 Texas Ct. App., 32.) An appurtenant is not a portion of the principal thing; it is something belonging to, pertaining to, something else which is its principal. “The thing appurtenant must be of an inferior nature to the thing to which it is appurtenant.” (1 Bouv. Law Dic., “Appurtenant;” 2 Blackst. Comm., 19.)

Opinion delivered November 24, 1888.

Again, we are of opinion that the evidence is insufficient to establish that the premises belonged to or were the property of the defendant Ballew. The judgment is reversed and the cause-remanded.

Reversed and remanded.