The indictment charges appellant with having permitted gambling to be carried on in the house under his control. The charging part of the indictment is as follows: "In the Count and State aforesaid on or about the 20th day of March, A.D. 1911, did then and there knowingly permit premises then and there under his control to be used as a place to *Page 526 bet and wager and to gamble with cards and as a place where people did resort to gamble, bet and wager, and as a place to keep and exhibit for the purpose of gaming a gaming table and bank; and the said Jesus de los Santos knowing that said games prohibited by law were being played on premises under his control did then and there knowingly permit said premises to be used, against the peace and dignity of the State."
1. Motion was made to quash the indictment, and urged also in motion for new trial, because it fails to set out any offense against the law, and also that it fails to allege the venue of the offense in that it fails to allege that said premises were located or situate in Webb County. An inspection of the indictment verifies this criticism. In order to sustain this indictment as sufficient, the allegation should have been specific that appellant not only permitted the premises under his control to be used for gaming purposes, but that such premises were located in Webb County. This question has been directly adjudicated in Eylar v. State, 37 Tex.Crim. Rep., and Mohan v. State, 42 Tex.Crim. Rep.. Under these authorities this indictment is insufficient to properly charge the offense, and the motion to quash, and motion for new trial should have been sustained. This ought to reverse and dismiss the prosecution.
2. Two other questions ought to reverse this judgment. The court charged the jury as follows: "You are instructed that where a person rents the whole of a building from the owner and uses a part of it for his own purposes and sublets other parts of it to other persons he is nevertheless in control of the whole building within the meaning of the gaming laws." Exception was reserved to this charge principally because it was a charge upon the weight of the evidence as well as an incorrect statement of the law. I suppose the trial court had in mind a statute which prohibits the subletting of premises by a renter to a subtenant without permission of the landlord. Whatever effect that statute may have upon rights in civil cases, and whatever the court might be justified in telling the jury in regard to this phase of the law in a civil cause, I am of opinion under the facts of this case such a charge is not warranted in a criminal cause. It will be noted that in civil matters that question would arise between the parties to a contract, and the landlord might take advantage of it, but the State of Texas is a third party and not interested in that matter and ought not to be allowed to take charge of it as not being a party to the contract. Presumption of innocence, reasonable doubt and criminality in connection with use of the premises for gambling purposes can not arise in civil cause. If appellant rented the house, it was his so far as the rental contract was concerned and might be inhibited by the law from subrenting unless he had permission of his landlord. But the action of the landlord could not make appellant guilty for violating the law under a statute which punishes only where the appellant is prosecuted for knowingly violating *Page 527 the law. His knowledge of the matter that the gaming was going on in the house would not depend upon the contract and matters between the landlord and tenant or between himself and a subtenant. It must be the knowledge in fact that gambling was being carried on in the house. This charge would seem to indicate to the jury that the fact that appellant had subrented the house to another party would be taken as a fact against him that he was permitting gambling in the subrented property, and to that extent was a charge upon the weight of evidence. It made appellant guilty for subrenting — not for knowingly permitting gaming in the house. The fact that appellant may have subrented the house to another party could not indicate to the jury that gambling was going on in that part of the house with his permission, simply by reason of that fact. In fact, it might be a circumstance in his favor, because by the subrenting he had placed it in possession and in control of another party, although it might have been an illegal contract under the civil statute. If, as a matter of fact, he transferred the control of the house to another party, it would be under the control of that party whether it was legal or illegal, and if it had passed under the control of the third party to the exclusion of the control of the defendant, it would not he a criminal circumstance against him that he had subrented the property. This charge was erroneous. A brief statement of the evidence bearing directly upon this question may be thus summed up: Appellant had rented a house with four rooms that fronted on two streets, two rooms fronted on one street, and one of those rooms and the room in which the gambling occurred fronted upon another street. In other words, the house was at the intersection of two streets. Appellant occupied the room immediately at the intersection of the streets for a saloon. The room adjoining the saloon and a rear room were occupied by another party to whom appellant had rented the two rooms as a restaurant and kitchen. The other room, which fronted on the side streets, or the other street, appellant rented to another party to be used as a barbershop. This occurred about the 10th of the month. Appellant immediately left town and went to his ranch some miles in the country, and was absent until the night the room was raided and parties found gambling in it. The testimony is little in doubt as to what time he reached his saloon that night. One of the witnesses indicate that he was in the back yard somewhere behind the house attending to a call of nature at the time the sheriff went into the room where the parties were gambling, and arrested them, and just after this he passed into the rear of the house through the kitchen and restaurant into the saloon. The remaining part of the testimony is to the effect that appellant did not reach the saloon or the house where the gambling is said to have occurred until after the arrest of the parties, and they had been all carried away. No witness swears that appellant knew anything about the gambling until after the arrest, and *Page 528 the evidence all shows that he was not in town or about the place from the time he rented the house to be used as a barbershop until the night on which the gambling is said to have occurred.
This, therefore, brings up the next proposition. The court failed and refused to charge the law of circumstantial evidence. This case was clearly one of circumstantial evidence, and not of a cogent character. The court did not give the jury a charge on the law of circumstantial evidence. This failure and error is of a most material character. In conclusion, referring back to the charge with reference to that portion of the charge of the court in regard to subrenting the property, and remembering that this is a case of circumstantial evidence, it is easily observed that the charge given by the court might be and doubtless was used by the jury as a cogent fact against appellant charging him with knowledge of whatever might be going on in the house. That charge placed him in control of the house despite the contract by which the other party was placed in control. There would be no question of the fact that if property had been taken from the room which was used by the party as a barbershop, it would be the property of that renter, and ownership would have to be alleged in him as occupant of the house.
The judgment ought to be reversed and the prosecution dismissed.
I dissent.
ON REHEARING. March 6, 1912.