Prior v. State

4 Tex. 192

Opinion

DipscoMB, J.

Tliis is an appeal from a judgment rendered on a conviction for playing cards at a public place.

The only point presented for our consideration arises from a supposed failure in the proof to support the charge in the indictment, as to the place.’ The indictment charges the playing to have been '•'in a store-house for retailing .spirituous liquors,. then and there situated, and then and there being occupied and •used by one Alexander Bonner as a store-house for retailing spirituous liquors, the same being then and there a public place.’’’’ The evidence fully sustained the charge, as made in the indictment, as to the playing and as to its being in a store-house used for retailing spirituous liquors, and in every particular except as to the ownership or occupant or the house. The witiie~s said that lie (iki not know who was the owner~ or the occupant at that thue ; that it had sever~I times been changed from the occupancy of one to aiuotlier. The most material fact, and indeed all that it was necessary to have beoi i averred. was tile playing at a piih'io place ol at a house occupied for ret iing spirit ions liquors. It could not hnporta to allege who owned or or (pied (lie h:>use. Such an inquiry coi l only ha~ , keen essential had the owner or occupant been indicted for permit ting playing at cards in his house. In this indictment it is nothing more than surplusage ; tIme indictment is good without it. Time evidence supports all that is material to have been alleged.

Note 83.-Sublett v. The State, 9 T., 53; The State v. Lopez, 18 T., 33.

Judgment affirmed.