DAVIDSON, Presiding Judge.
The facts disclose that' appellant leased a certain building known in the statement of facts as the Astor hotel, on Main Street, in the City of Dallas, at two hundred dollars per month. This rental was due in advance on the first day of each month. That part of the building rented consisted of the second and third floors. The contract was for two years, beginning January 1, 1911. The contract was in writing, and signed by H. L. Edwards, Thomas Bros., W. Leslie Williams, and by appellant. Williams was the
party through whom appellant leased the property. Within a month perhaps after the execution of this lease contract, appellant, with the consent of Williams, sub-let or sub-leased the identical property to Gurdy. The lease or sub-lease to Gurdy by appellant was in writing and a duplicate of the lease from Williams to appellant except necessary changes to meet the fact it was a sub-lease. Williams testified in this respect substantially as follows: . Shortly after the lease appellant asked him to change the wording of the contract in regard to subletting the same. Witness refused to change the writing in the contract, but informed appellant that it would not make any difference about him sub-letting the building, but he would not release appellant from paying the rent. He says, “I told him if he did sub-let the building I would look to him for the money; that I would not release him from liability.” The day after the execution of the lease to appellant, Williams says, “I expressly told him that he could sub-let the premises.” It is also shown that appellant was engaged in running a gravel pit west of Dallas. The State further introduced testimony to the effect that gambling was carried on in a room on the third floor of the building, and there is some evidence that appellant was in that room on one or two occasions, and from the circumstances .it may be deduced that appellant was aware that gambling occurred in the room. The State further showed it was a gambling room, with the paraphernalia and matters of that sort, and quite a number of games were played there. Witnesses testified that a man named Cornwall would sell the checks, and take in the “rake-off” or “take-off,” but that appellant never had anything to do with the games. Appellant introduced in evidence the written lease from himself to Gurdy. This written lease was for the same premises and building described in the lease contract from Williams to appellant, the difference being that it only covered one year instead of two years, as did appellant’s lease. All the gambling herein mentioned and all the matters connected with this transaction occurred within the time of the lease by appellant to Gurdy. Gurdy was to pay appellant $250 a month in addition for the building, and the evidence shows that he did pay it as per agreement. Gurdy took charge and ran it as a hotel, with the usual number of clerks and such things, and all rooms on the second and third floors of the house were under the control of Gurdy, and in his absence under the 'control of his clerks and employes. It is shown that occasionally he was out of the city on short trips. On the third floor there was a club room, a gymnasium and the room in which the gambling occurred. It is also shown in this connection that appellant in the hallway on the second floor had a desk where he sometimes transacted his private business, which was in no way connected with the hotel. Perry, Eiley and Dymoelc were the clerks at the hotel; sometimes one was on duty at night and sometimes the other. Eiley testified that he collected the money and turned it over to Gurdy, and in Gurdy’s absence would pay the rent, and attend to all matters of that sort necessary about the hotel. All witnesses, who
testified in that respeet stated that appellant exercised no authority or control over the building, or over any of the employes in or about the building, and that Gurdy was present continually when not “off on short trips.” The indictment contains six counts. It is unnecessary to mention any of the counts except those submitted by the court in the charge, which were the first and second counts. The first count charged that appellant did unlawfully keep and was interested in keeping the premises and building for the purpose of being used as a place to bet, wager and gamble with cards, etc. The second count, the one under which the conviction occurred, charged appellant “did then and there unlawfully and • knowingly permit a certain building, room and place, which building, room and place was then and there under the control of the said W. T. Strong to be used as a place to bet, wager and gamble with cards, and as a place where people resorted for the purpose of betting, wagering and gambling with cards against the peace and dignity of the State.”
So it will be discovered from the indictment, charge of the court and verdict of the jury that it was under the second count the conviction occurred. The statute, article 559, reads as follows: “If any person shall rent to another, or shall keep or be in any manner interested in keeping, any premises, building, room or place for the purpose of being-used as a place to bet or wager, or to gamble with cards, dice, dominoes, or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, or shall knowingly permit property or premises of which he is owner, or which is under his control, to be so used, shall be guilty of a felony, and, upon conviction shall be punished by confinement in the penitentiary,” etc. Applying the provisions of this statute to the two questions submitted by the court, it will be discovered that under the first count it would. be necessary to show that appellant was either the keeper or interested in keeping the premises for gambling purposes. Under the second count it would be necessary for the indictment to charge either that appellant as owner knowingly permitted the premises to be used for such gambling purposes, or that the premises were under his control and that he permitted it to be used for such purpose. So this clause of the statute provides a different means of committing the offense from-that "charged in the first count. The jury having acquitted of that charge, it is unnecessary to notice it further- with any degree of particularity. Under the second count a party may be indicted in one of two ways: either that as the owner he knowingly permitted his premises or property to be used for such gambling purposes, or not being the owner, he permitted the premises when under his control to be used for said purposes. Appellant could not be convicted as the
owner,
because there was
no allegation that he wás the owner.
Therefore, he could be convicted only under the other clause, if at all, for permitting premises under his control to be used for thé purposes indicated. The evidence
is conclusive that he was not the owner of the property. It was leased by appellant, therefore he was not the owner. It would be a self-evident proposition that appellant
could not lease from Mm,self Ms own
property,
or property of which Tie was the owner.
It is also uncontroverted that with the
consent
of the
lessor
appellant
sub-leased
the property in question for one year, and
in writing
to his sub-tenant or sub-lessee Gurdy; that Gurdy went in possession of the property and ran it as a hotel, employing all clerks and other employes about the hotel necessary for that purpose. Without going into any statement further than above, the evidence, we think, is undisputed that appellant leased the property. It is also undisputed that appellant
in writing sub-leased the property for one year to Gurdy.
This lease was read in evidence before the jury as well as the written lease from the landlord to appellant. It is evident that unless it is shown that the premises were under the control of appellant at the time the gambling was carried on, he could not be convicted under the second count. Two things must concur, first, that the premises were under the control of the accused, and, second, that he knowingly permitted gambling to go on in those premises or in the building while it was under his control, otherwise the State -would not have a case.
The first proposition in this connection is, the court erred in failing and omitting to instruct the jury in affirmative language that unless appellant and not Gurdy had the premises under his control at the time of the alleged gambling, he would not be guilty. This charge should have been given. The court, submitting the second count, confined the jury to the issue that appellant knowingly permitted the building, room or place which was then and there under his control to be used as a building, room or place for the purpose of gaming, and that people resorted there, etc., for that purpose. Appellant requested the following charge, which was given:
“You are instructed in this case at the request of the defendant to be construed in connection with the main charge of the court that before you can find the defendant guilty under the second count contained in the indictment, you must believe from the evidence beyond a reasonable doubt, the defendant did knowingly permit premises under his control to be used as a place for gaming.
“And in this connection yoii are told that the word ‘knowingly’ means with full knowledge and intentionally, and unless you do believe from the evidence beyond a reasonable doubt that the defendant with full knowledge did permit the premises to be used as a place for gaming, and further believe that the premises were under his control, you can not convict the defendant under the second count.”
In the motion for new trial the •court’s general charge is criticised because it did not affirmatively submit to the jury the issue as to whether defendant had possession and control of said building and premises in question at the time the game is alleged to have occurred, or whether Gurdy had the actual exclusive possession and control of'
the premises at said time; and it is contended the evidence conclusively shows that Gurdy did have actual and sole possession and control of said building and premises at all of said times when gambling is alleged to have occurred, but the issue being strongly raised, should have been affirmatively submitted to the jury in the charge of the court, and the failure of the court to so affirmatively submit the issue greatly prejudiced the rights of this appellant upon the trial and resulted in his hurt and injury, and must have caused the jury to believe that the issue was not raised by the evidence, or that the court did not give credit to the testimony of the defendant’s witnesses upon said issue. That issue was not submitted pertinently in any charge given. We are of opinion that this criticism of the charge is correct. In a general way the court charged the jury, both in the court’s charge and in the requested instruction, that they must find that the premises were under his control, and in that connection gave a definition of “knowingly.” In this connection it is also perhaps necessary to notice that the court gave the general definition. of principals, but in the application of the law of principals the court confined it to the first count in the indictment and not the second, and nowhere did he give the charge in regard to principals as to the second count. The central thought of the case was whether appellant was in charge of the premises or whether Gurdy endorsing the principles therein laid down is Humphries v. State, 68 lant should have been acquitted. The entire testimony for the defendant from beginning to end was to show that he was not in control of the property, but that Gurdy was.
Appellant was not the “oionef” of the property,
and, therefore, he could not be contieted from that standpoint. Sometimes the word “owner” may be held to include the lessee, but that construction could not obtain under this statute. The statute itself draws the distinction between the
owner who is in control of the property, or has it in possession, and one who is not the owner hut has control and is in possession.
If the allegation had been that he was owner, then it would be required to' show by the evidence that he was the owner. The conviction of an accused person under these provisions must depend upon his relation to the premises, and necessarily this must be limited on the trial to allegations in the pleadings. It will not do to say that he could be charged under one clause and convicted under another of the statute. The statute provides different means of constituting the offense, and it would take different evidence to sustain one from what it-would the other. Of course, the instructions must conform to the pleadings and the facts, and the facts must sustain the pleadings and justify the charge which is given. Wherever the statute provides the relation of parties to the crime, the State must charge and prove those relations in order to secure a conviction, and it occurs sometimes under these, statutes that the doctrine of principals would not apply, and we suppose the trial court recognized this in not applying the doctrine of principals to the second count. This question was discussed in the case of Mitchell v. State, 34 Texas Crim. Rep., 311. That
was a conviction under the disorderly house statute, which provided punishment against a party
who ivas the owner, lessee, or tenant,
and it was held that it
ivas necessary that one of those relations he charged and proved else conviction could not he sustained.
Following this and endorsing the principles therein laid down is Humphries v. State, 68 S. W. Rep., 681; Strong v. State,
52
Texas Crim. Rep., 133; Cook v. State,
42
Texas Crim. Rep., 539; Hamilton v. State, 60 S. W. Rep., 39. The proposition may be thus stated: Where the statute defines the offense and confines it to certain named relations, those relations must exist, or there can be no offense, for it would not be within the statute. Why is this so.? Because the Legislature so determined by its authority, and limited the punishment to such defined offense. Cases supporting the proposition that the courts can not create offenses are too numerous to require citation; in fact, none ought to be required. It is basic, fundamental, constitutional. We are referred to article 388j of the original Act, now article 567 of the Revised Criminal Statutes, which reads as follows: "The use of any house, property or premises, by any tenant or lessee for any purpose, made unlawful by this law, shall terminate all rights and interests of such tendnt or lessee in same, and shall entitle the owner thereof to the immediate possession of said house, property or premises.” We suppose the contention of the State in this matter is intended to be if the house was used for gaming purposes and appellant was aware of that fact (the statute terminating the lease), that therefore he would be in possession of the premises, and any gambling that occurred in the house thereafter would render him guilty. It will be noticed by the provisions of article 567, supra,
that only the owner would he entitled to possession of the property as against the tenant or lessee.
The statute does not
entitle the tenant to possession. Owner
and
tenant
and
lessee
are not synonymous terms and do not mean the same thing under this statute. If the construction contended for by the State is correct; it would follow that gambling on the premises would put the tenant or lessee out of possession and place the owner in control. Appellant was the
lessee,
not the
landlord, and was not the owner.
To apply this to this case, and concede that when the gambling occurred the .lease contract was terminated, who would be in control ? The lease contract being out of existence,
the owner would be in possession,
the premises would revert to his control, and therefore he would be responsible. The
tenant
would, therefore,
he out of possession hy operation of law.
The statute expressly provides that gambling shall terminate all rights and interest of such tenant or lessee in the property, and shall
entitle the owner
to the immediate possession. It does not, however, provide that the mere fact the owner is
entitled
to' possession that therefore he is in possession of the property. What other steps requisite to be taken in order to assume possession of the property is not necessary here, we think, to decide. Appellant
was not the owner nor was he prosecuted as such.
The authorities agree to this proposition, that where the lessee sub-lets or sub-leases the property, and the
sub-tenant or sub-lessee goes in possession with consent of the landlord, the relation of landlord and tenant is created between landlord and sub-lessee, and the possession of the property is in the sub-tenant or sub-lessee. Judge Stayton, delivering the opinion in Forrest v. Durnell, 86 Texas, 647, thus states the proposition: “If the landlord consents, expressly or impliedly, to the occupancy of an assignor or under tenant the relation of landlord and tenant necessarily exists between him and such person, for under the statute such holdings, are illegal without such consent.” Under the law when the landlord consented to the sub-lease of the premises Gurdy became the under tenant or sub-lessee, and the relations of landlord and tenant thereby necessarily existed between such landlord and Gurdy. This proposition seems to have been announced in the cases generally in this State. In the case of Robinson v. State, 24 Texas, 152, Judge Roberts, speaking for the court, said: “Another objection to the charge is, in substance, that it assumes that the defendant retained either a partial or a conditional control of the rooms rented to Meroney which gave him a right and made it his duty to prevent illegal gaming in them upon learning it was being carried on there. We do not think this is a proper construction of the terms of the lease. The lease purported to direct the use to be made of the rooms by Meroney and restricted him to using them only as bedrooms or sleeping apartments, but it did not follow as a consequence of that restriction that the defendant retained a right to control the rooms either partially or conditionally, so as to impose it upon him as a duty to prevent illegal gaming. The question in the case was, did the defendant have really and substantially the control of the rooms; and was not the execution of the lease to Meroney a false pretense and sham device to shelter the defendant from responsibility. Under the facts in proof the court might have submitted that question to the jury.- It would have enabled them to have considered the ‘whole case in the true light as dictated by their knowledge and observation of such matters. We think the court incorrectly instructed the jury as to the legal effect of the terms of the lease. Judgment is reversed and cause remanded/ ”
In the instant case the trial court did not even instruct the jury in regard to the effect of the sub-lease entered into between appellant and Gurdy. This he should have done. There is no reference to it in the charge at any point. In Borchers v. State, 31 Texas Crim. Rep., 517, Judge Hurt, speaking for the court, uses the following language: “The proof shows that the house called the premises in the information had been rented to, and in fact was under the control of Bell & Menasco, and that the defendant, though the owner, was not in control of same. Under such a state of facts he could not be convicted under article 365. But if the premises or house be rented to another for the purpose of being used as a place for playing, dealing or exhibiting any of the games prohibited by the provisions of chapter 3, Penal Code, the renter violates article 366, and is amenable to the punishment there named and
must be indicted under that article. The court charged the jury in substance that defendant would be -guilty if he owned the house, knew that the cards were being played therein and did not revoke the lease and stop the playing. This is not the law, and the judgment is reversed and the cause is remanded.” The same principle was laid down in Brumley v. State, 12 Texas Crim. App., 609. In Elliott v. State, 39 Texas Crim. Rep., 242, Jones v. State, 17 S. W. Rep., 719, and Clark v. State, 4 S. W. Rep., 658, it was held that a lessor has no legal right whatever to carry prohibited weapons upon the premises of his tenant during the continuance of his lease contract, and this for the simple reason that the premises during the time are no longer his, but are in the exclusive control and management of his tenant. The same principle was again laid down in Zallner v. State, 15 Texas Crim. App., 23.
If under the present law the lease would be abrogated the
owner
would be in possession. The law here abrogates the contract and not the act of the contracting parties. The relation of the parties to the crime is fixed by the statute and its terms.
The word “control” in this statute has a technical meaning _ well understood. The accused party must control the premises. The property must be so under his control that he has a right to direct and handle it and bid or forbid the use of it, and where guilt depends upon this control, the evidence must Show it. In addition to cases already cited see Commonwealth v. Wentworth, 15 N. E. Rep., 138, 146 Mass., 36; State v. Frazier, 8 Atl. Rep., 347; State v. Abrahams, 71 American Decisions, 399.
Ho case has been cited to us which upheld the doctrine that where the property is in possession and under the control of the lessee, that the owner would be guilty of permitting the premises under his control to be used for gambling purposes. Hor has a case been cited to us, nor have we been able to find one, which holds that where the sub-lessee is in possession under the lessee, with the consent of the lessor, the owner or tenant has been held responsible criminally for permitting gambling on the premises, or that the property was under his control. The case of Santos v. State, 65 Texas Crim. Rep., 578, 146 S. W. Rep., 919, decided by this court, was decided upon a different proposition. In that case it was shown that the lessor had not authorized his tenant or lessee to sub-let the property, and it was therefore held by my brethren that De Los Santos and not the sub-tenant was in control of the house. The authorities seem to hold in that character of case that the legally unauthorized sub-tenant or sub-lessee would only be an employe of the lessee and-not a tenant, unless, as before stated, with the consent of the lessor, Forrest v. Durnell, supra. In the case of Commonwealth v. Wentworth, supra, this question was decided as herein stated. Field, J., rendering the opinion of' the court, said: “If a building is let to a tenant who enters into possession'under a lease, the building is not under the control of the landlord, but is under the con-/ t-rol of the tenant while he continues in possession under the lease, unless
there are special provisions in the lease which give the control to the landlord.” Closing the case, the court said: “There was no evidence that the defendant actually had the control of the building described in the indictment. So far as appears, he had not the control, but he could have taken control by ejecting his tenant, if the tenant was using the building for the illegal sale of intoxicating liquors. The principal exception must be sustained, and it is unnecessary to consider the others.” That case, we think, is in point here. The evidence, therefore, places Gurdy in control of the premises. The written lease so shows, all the oral testimony so shows, and it seems to be uncontradicted. The only evidence, as we understand the statement of facts, which tends even to show to the contrary is that appellant had a desk in the hallway on the second floor of the building, while Gurdy was in possession and ran it as a hotel. Because appellant guaranteed payment for the rent to the landlord did not put him in control. This did not put him in possession of the property. We are, therefore, of opinion that the court erred in not charging the jury as contended by appellant. The jury should have been instructed that unless appellant had the house under his control, or if there was a reasonable doubt about this he should be acquitted, and if Gurdy was in control of the premises, or there was a reasonable doubt of that fact, then appellant should be acquitted. We are of opinion further that- unless the State can strengthen. its case by other evidence upon another trial appellant is entitled to a verdict of not guilty. He is clearly entitled to a verdict of not guilty under the facts of this case, because the State failed to show he was in
control
of the house, and the testimony shows that he was not; and does show it was under the control of Gurdy.
If the lease was abrogated on account of the gambling, the statute by its express terms places the
owner
in possession.
Appellant was not the owner.
It is called to the writer’s attention, however, that in the case of Austin v. State, 61 Texas Crim. Rep., 573, in a dissenting opinion he used the following language: “If the owner of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property or premises to be so used. But in that case the renter would be guilty of keeping a gaming house; he would be in charge and control of the house himself. It would be bis premises by reason of his rental contract; he would be in possession. This case comes within that clause of the statute. In a sense, every man who keeps a gaming house is permitting parties to play in the house, if in fact they do play there, but the statute in regard to permitting gaming in houses has no reference to this condition of affairs, for, under those circumstances, the man would be a keeper.” The expression above, towit, “If the owner of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent
it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property or premises to be so used,” is .singled out by my brethren as authority for holding appellant guilty for permitting gaining to go on in the house under his control. That was a dissenting opinion, and if it correctly announced the law it could not sustain this conviction because appellant was not the owner. The prevailing opinion had decided the Austin case adversely from the way I believed it ought to be, and in arguing upon the question the writer used, by way of reasoning, the quoted expression. The question in that case was whether the renter who had charge of the place and invited people to his house as a resort for gaming, and engaged in gaming with them,
was the keeper,
or that he was
permitting gaming in a house under his control.
The question of
ownership
was not in the case. Appellant was only the renter. My view of the law was that he was the
keeper
of the house under the facts under one clause of the statute, and
vjos not brought
under the clause which denounced punishment
for permitting gaming
in his house. Knox v. State,
62
Texas Crim. Rep., 512. My brethren took the. other view of it, hence my dissent. The question was not in the mind of the writer, nor in the minds of the majority as to what would be necessary for the
owner
of the house to do in order to ascertain this right to
entitle
him to possession of the house. Ownership was not in the case, nor were we discussing article 567 of the Revised Penal Code, which provides termination of the lease between the tenant and the landlord and its effect. • If the language had been in the prevailing opinion and not in the dissent, it would have been but dicta, because the question was not in the case, and, therefore, it could not have been necessary to a decision. The writer did not undertake to state what steps were necessary to resume possession of the property on the part of the
oivner
when he ascertained gambling was going on in his house in order to make him guilty. A dissenting opinion is not an authoritative decision on any question, much less would an excerpt therefrom be so. regarded. But if a single expression is to be taken out of a dissenting opinion to be used as authority in a subsequent case, then all that is written in that connection should also go with it.
In no event was appellant the owner
of the house in question in this case. He was a renter, and had transferred his lease, and Gurdy, his sub-lessee, was in possession.
■Referring back a moment to the question involved as to the charge, we understand that the law of the case must be given, and where it is not given, and the error was one calculated to injuriously affect appellant’s right, whether it be of omission or commission, the. judgment should be reversed. If the court had given a charge to the effect that if the jury should find that Gurdy was in charge of the house and not appellant, and that by virtue of the lease contract the law put Gurdy in possession of the house, and they should find from the testimony, that he had actual control of it, they should acquit appellant, then the jury might and doubtless would have rendered a much more favorable
verdict to the accused than they did; that is, they might, and as we believe should have done. In this connection we would further say, upon another trial the court in his charge to the jury should construe the effect of the written lease by appellant to Gurdy. It was a contract, and whenever a written contract is in evidence it becomes the duty of the court to instruct the jury as to the legal effect of that instrument. It is not necessary to cite authorities in support of this proposition. This the court did not do, but left the jury, under the charge given, to determine whether or not they believed appellant was in control óf the house, without charging affirmatively either the effect of the lease or appellant’s side of the evidence, that he was not in possession, but that Gurdy was.
If the lease was canceled by the statute, then it is evident from the terms of that statute and the facts that appellant was not in.possession because he was but the lessee. Under the statute in question the owner is not the lessee, nor the lessee the owner. It is based on this wide distinction.
The judgment is reversed and the cause remanded.
Reversed and remanded.