J. W. Comer v. The State, 26 Tex. Ct. App. 509

White, Presiding Judge. It was charged in the indictment that the unlawful playing at a game with cards was at “a tavern or inn,” and again that it was done “in a room in and attached to said tavern and inn.” The conjunctive “and” was used to connect the two offenses. If several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses and may be charged conjunctively in the same count. (Willson’s Crim. Stats., sec., 1989.) This indictment was neither uncertain nor duplicitous, and is in all respects sufficient.

Our statute expressly prohibits playing cards in a public place, and expressly names taverns and inns as public houses which come within the inhibition. (Penal Code, art. 355.) But it is provided by

article 356 of the Penal Code that “a private room in an inn or tavern is not within the meaning of public places, unless such room is commonly used for gaming.” It is abundantly established in this case that the playing was done in an inn or tavern, but the contention is that it was done in “a private room,” and that the private room in which it took place was not “commonly used for gaming,” and that consequently no offense was committed. We may concede that the prosecution failed to show that the room was commonly used for gaming.

The evidence was that the card playing was in bed rooms—guest rooms in the tavern or inn. Defendant and others with him would go, with permission of the proprietor, 'into such rooms when not occupied by guests, “close the door of the room, and the general public were not thereafter admitted, and only those engaged in the game occupied the room for the time the game lasted.” “The parties so using the room for a game paid the clerk of the house for use of the room.” Mr.

Bishop says: “An inn, tavern or hotel is a place forth© general entertainment of all travelers and strangers who apply, paying suitable compensation.” (Bish. on Stat. Crimes, second ed., sec. 297.) Mr.

Webster defines “inn” as “a place of shelter, habitation, residence, abode; a house for the lodging and entertainment of travelers—a tavern,” etc., and he defines “tavern” as “a public house where entertainment and accommodation for travelers and other guests are provided.” In his definition of the word “guest,” in so far as applicable to this case, it is “a lodger at a hotel,” and “a lodger” is defined to be “one who lives at board or in a hired room.” • “Lodging” is “a place of rest for a night, or a residence for a time—temporary habitation.” To make a guest room in a hotel—that is, one appropriated to public use as such—a private room, it must have been taken by a guest or lodger seeking rest for a night or a day, or a residence for a time, or one desiring to use it for a temporary habitation—that is, “a place of abode.” Until so appropriated by “a guest,” it is a part of the public house known as tavern or inn.

The term “public place,” as used in our gaming statutes, does not mean a place solely devoted to the public, but it means a place which is in point of fact public as distinguished from private. (Parker v. The State, 26 Texas, 201.) A house may be said to be a public house either in respect to its proprietorship or its occupancy and uses. (Lockhart v. The State, 10 Texas, 275; Shihagan v.

The State, 9 Texas, 430.) And so a guest room in a hotel is a part of the public hotel or tavern, in that it is for the use of the public business of the house in the entertainment of its guests, and only becomes private after it is appropriated by a guest.

In the case in band the evidence, we think, most clearly shows that the room played in was in a tavern; that the parties playing in it only occupied it temporarily for the purpose of gaming, and for no other purpose; that they did not seek it as a place of habitation, residence or rest; that, in so far as the room was concerned, they could not be considered as guests of the hotel who had acquired the use and appropriated it for the usual and ordinary purposes of guests, and that consequently it was not a private room.

This may be said with special emphasis in so far as this defendant was concerned, because the facts show that he was a guest of the hotel, having extensive suites of rooms in another part of the building, where he resided with his family, and where, for aught that appears, he might have played cards whenever he desired, without resorting to unoccupied guest rooms in other portions of the building. Uo special exceptions were made and reserved by defendant to the charge of the court as given to the jury, and no special instructions were requested for defendant.

This being so, and the case being a misdemeanor, the rule is that even if errors in it should be apparent, unless they are of a fundamental character, they will not be revised by this court. (Haynes v. The State, 2 Texas Ct. App., 84; Veal v. The State, 8 Texas Ct. App., 475.) Opinion delivered November 28, 1888. We have found no reversible error in the record on this appeal, and the judgment is affirmed. Affirmed.