Walter Watson v. The State, 13 Tex. Ct. App. 160

Hurt, J. The appellant was convicted for playing cards at a house for the purpose of retailing spirituous liquors. The defendant moved to quash the indictment because it did not- allege that the house was a public place. The court overruled the motion, and defendant assigns this as error. This indictment is perfectly good in every particular. It is in the exact language of the statute. The defendant moved for a new trial upon the ground that the evidence failed to support the charge contained in the indictment. The charge is that defendant played cards at a house for retailing spirituous liquors.

This charge must be established by the evidence. The proof showed that the playing took place in one of the upper rooms of the old Stone Fort, situated in the town of Nacogdoches. That the basement room' of said old Stone Fort was used for retailing spirituous liquors. That the upper room was the private bedroom of one of "the clerks employed in the retail establishment. That the means of ingress and egress to the upper room were steps ascending from the street at the east and west ends of the Stone Fort building.

That the lower rooms of said building had no connection with the upper rooms, save by the stairway ascending from the street on the outside of the same. The upper room was not in any manner used as a place for retailing liquors, nor for storing goods belonging to the retail establishment. Do these facts support the charge? Most evidently they do not. It was held in this state, under a former statute, that houses included all rooms from the cellar to the garret, regardless of approaches. (Cole v. The State, 9 Texas, 42; Penn v. The State, 12 Texas, 210; McCoffey v.

The State, 4 Texas, 156.) This, however, has never been held under the present statute. (Holtzclaw v. The State, 26 Texas, 682.) If the upper room had been in any manner connected with, or used for the purposes of the store, that is, so used as to give to it the character of a house for retailing spirituous liquors, then in that event it would have come within the prohibition of the statute; otherwise it would not. (Holtzclaw v. The State, 26 Texas, 682.) The charge of the court no doubt was inspired by the rule in Cole v. The State, 9 Texas, 42.

This rule, as there stated, is not now the law, hence the charge is wrong. The charge being erroneous and the proof failing to support the charge in the indictment, the judgment is reversed and the cause remanded. Reversed and remanded. Opinion delivered November 11, 1882.