Ashley Parker v. The State, 26 Tex. 204

Bell, J. We are of opinion that there is no error in the judgment of the court below. The indictment is perhaps defective, and upon the authority of the case of Lewellen v. The State, 18 Tex., 538, ought to have been quashed upon proper exception, because the indictment did not distinctly allege that the three persons named in it played a game at cards with each other, nor did it clearly show that the parties were indicted for separate offences.

But in the present case there was no exception taken to the indictment; there was no motion in arrest of judgment because of the insufficiency of the indictment; nor was there any objection to the admissibility of the evidence for want of proper averments in the indictment. We are, also, of opinion that the court below did not err in refusing to give the 5th instruction asked by the counsel for the defendant. The instruction given to the jury by the judge, as an exposition of what is meant by the term “.public place,” used in the 409th

article of the Penal Code, was, we think, very proper and correct,- in reference to the facts of the case. “A public? place'” does not mean a place devoted solely to the uses of the public; but it means a place which is, in point of fact, public, as> distinguished from private—-a place that is -visited by many persons, and usually accessible to the neighboring public. The object of the la* is to prevent gaming at places which are within the observation of persons indiscriminately, because of the consequences resulting from the evil example.

A place may be public during some hours of the day, and private during other hours. A lawyer’s office may be a public place during the usual hours of business, and private during the evening and night. A lawyer’s office may, also, and in times like the present many doubtless are^ very private and quiet and undisturbed places at all hours, Wkether a place is a public place or not, in contemplation of the statute on the subject of gaming, is a question of fact, or a mixed question of law and fact, and is always proper to be submitted to the jury, under the instruction of the court.

The judgment of the court below is affirmed. Judgment affirmed.