Appellant was convicted of unlawfully playing cards at a public house, and fined $10, and appeals. Appellant made a motion to quash the indictment. Said indictment, as to the charging part, is as follows; "That defendant did then and there, in the county and State aforesaid, unlawfully play at a game with cards in a public house, to-wit: a certain printing office, commonly open to the public for business purposes," etc. The court overruled the motion to quash. In this action of the court there was no error. The indictment in this respect is in accordance with the decisions of this court. See Willson, Crim. Forms, sec. 239, and authorities there cited. We have examined the testimony in this case, and in our opinion the evidence does not sustain the verdict of the jury. It has been repeatedly held by this court that a public place or house may be public at some time, according to its uses, and the public have the right to enter the same for the purpose of business, recreation, or amusement; but it may be private at other times. The proof in this case showed that in the daytime the printing office, where the game was alleged to have been played, was a public house, where the public had a right to and did enter for the purposes of business; but there is no proof whatever that it was used as a public place at night, at which time the game is shown to have been played. On the contrary, the proof is to the effect that it was not so used at night. The proof further shows that the office was *Page 146 shut, and all of the outside windows, except the one which opened into the back yard, had blinds on them, and the office was made private, and not open to the public or to their observation. Because, in our opinion, there is no evidence to sustain the finding of the jury, the judgment is reversed and the cause remanded.
Reversed and Remanded.