Fossett v. State

16 Tex. Ct. App. 375, 1884 Tex. Crim. App. LEXIS 123

Opinion

Willson, Judge.

The indictment upon which this conviction was had charges that the defendant played cards “in a certain livery stable, in the loft of said livery stable, then and there being a part of said livery stable, overhead and above the stalls of said stable, to-wit, in the town of -Meridian, and commonly known as Whitworth stable, or red stable, the said livery stable, and the said loft thereof, then and there being a public place.”

In Jackson v. The State, decided by us at the present term, we held a similar indictment insufficient because it failed to allege the facts which constituted the place of the playing a public placej the said place not being one of those specifically named in the statute. (Penal Code, Art. 409.) A “livery stable,” nor the loft thereof, not being named in the statute, it was essential that the indictment should have alleged the facts which constituted the same a public place. (State v. Fuller, 31 Texas, 559; Elsberry v. The State, 41 Texas, 158; Jackson v. The State, ante, p. 373.)

Defendant’s motion in arrest of judgment, because of the above stated defect in the indictment, should have been sustained.

Because the indictment is substantially defective, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered June 4, 1884.