Being unable to agree in their entirety with either the opinion of Presiding Judge Davidson or of Judge Prendergast, I deem it proper to state my views upon the main issues.
In the first place we can not agree as to the proposition of our presiding judge that Gurdy ever became the tenant of the owner of the building. There was no express privity of contract between them, nor could it be implied, but the evidence rebuts such theory, consequently those cases cited by our presiding judge do not apply to the facts in this case. The contract contained an express stipulation against subleasing, and the agent of the owner stated to appellant he would not change such condition in the lease; but says, "I told him that it did not make any difference about him subletting the building, but that I would not release him from liability." And further testified that appellant had continually paid him the rent each month, and under the agreement between them he looked alone to appellant, to which terms appellant consented and agreed. In addition to this the lease contract from Edwards to Strong was for two years from January 1, 1911, while the contract between Strong and Gurdy was only for one year from February 1, 1911. Our Supreme Court in the case of Davis v. Vidal, 151 S.W. Rep., 290, gave the question here presented exhaustive study, and in an able opinion held that Gurdy would not become the tenant of Edwards, the owner, but Strong would still remain Edwards' tenant, and Gurdy would become a tenant of Strong. The sound reasoning in that case appeals to us, and we are fully convinced it correctly announces the law, and we refer to it for the authorities so holding. *Page 102
Again, we can not agree with the opinion of our presiding judge wherein he says the rule of law as announced in Borchers v. State, 31 Tex.Crim. Rep., and other cases, is still the law in this State — that an owner who rents his house to another can not be convicted when he knowingly permits his tenant or lessee to use the rented property as a gambling house. The reason for the rule of law as announced in that case and other cases so holding no longer exists in this State, the reason being that when an owner made a valid lease contract, he parted with his property for the time and had no control over it, and, therefore, could not be held criminally liable for any act of his tenant during the life of the lease contract. This rule of law was the occasion and reason for the Legislature enacting article 567 of the Code: "The use of any house, property or premises, by the tenant or lessee for any purpose made unlawful by this law (the gambling law) shall terminate all rights and interests of such tenant or lessee in same, and shall entitle the owner to the immediate possession of said house, property or premises." Wherever such statute has been adopted it has been held that the use of the house or premises for the prohibited purposes cancels the lease, and the relation existing between the tenant and landlord becomes the same in law as if one held over after the termination of the lease. (Taylor's Landlord and Tenant, sec. 521, and authorities; Cyc., vol. 24, p. 1353, and cases cited; Am. Eng. Ency. of Law, vol. 18, pp. 379-380.) In this latter work it is said: "The use of the premises by a subtenant for an illegal traffic avoids merely the sublease. It is otherwise, however, when such illegal use by the subtenant is with the consent of the lessee."
The testimony in this case showing beyond question even if appellant had sublet the premises to Gurdy and Gurdy was in control of the premises, the illegal use of the premises was with the knowledge and consent of appellant, consequently neither appellant nor Gurdy could assert any legal right under the lease in law. The lease of each of them, if genuine, had been rendered void by the illegal use of the premises, and the owner of the building would be liable to prosecution for permitting his premises to be so used, when done with his knowledge, and a lease contract would be no protection to him subsequent to the time it was shown he had knowledge that the property was being used for the illegal purpose. In his dissenting opinion in the Austin case, 61 Tex.Crim. Rep., the presiding judge so announced the rule, saying: "If the owner of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property to be so used." In his opinion in this case our presiding judge says that was butobiter dicta in that case — that the question was not involved in that case, and he used the expression only by way of argument. We agree with him that in that case the question did not arise and was not passed on by the majority of the court, and further, that *Page 103 he may have intended to use it only by way of argument, but in using the expression he announced the correct rule of law, since the adoption of article 573, and the cases quoted by him in his opinion in this case on that point are not the law of this State, since the adoption of that provision of the Code. And while, as he says, it was announced in a dissenting opinion, yet we want to say that we concur with him that such is the law, and I am authorized to state by Judge Prendergast that he also concurs therein, and such is declared to be the rule of law in this State in this character of case, and the fact that he has leased the premises will be no defense to the owner, where it is shown that he knows of the illegal use of the premises and thereafter continues to permit it to be so used.
The lease, under the law, having been rendered void by their acts, and appellant nor Gurdy being able to assert any legal right thereunder, the sole question would be, who was in possession of the premises? Judge Prendergast has so fully digested the evidence we do not deem it necessary to do so, but merely state that it shows almost beyond question that appellant was in possession and control of the rooms used for gambling purposes, but if it could be said that there was some slight testimony that Gurdy was in control of the premises, such as that he once had a lease that covered it (which the testimony of his clerks would refute), yet it is so slight and inconsequential that a failure to charge thereon would not and should not result in a reversal of this case, and I concur in the opinion of Judge Prendergast on this question, and the opinion of Judges Roberts and Hurt copied therein and cited, and if these were the only questions in the case, I would concur in its affirmance.
However, in bill No. 6 it is shown: "Now comes W.T. Strong, defendant in the above entitled and numbered cause, and shows to the court that the indictment herein in this case against him was returned into this court by the grand jury of Dallas County on the 7th day of February, A.D. 1912. That the names of the witnesses on whose testimony said indictment was found are not endorsed upon said indictment; that the defendant, through his attorney, R.B. Allen, had requested the prosecuting attorney to endorse upon the indictment herein the names of the witnesses upon whose testimony said indictment was found, and whom the prosecuting attorney expects to use against the defendant upon the trial of this cause, or to furnish defendant, or his counsel, with the names of said witnesses. That the prosecuting attorney, Currie McCutcheon, Esquire, has refused and still refuses to disclose to the defendant, or to his counsel, the names of the witnesses upon whose testimony the indictment herein was found, or whom he expects to use against the defendant upon the trial of this cause, and has declined and refused, and still declines and refuses to endorse the names of any such witnesses upon the back of the indictment herein.
"This defendant says that he does not know the names of the witnesses upon whose testimony this indictment was found, and that he *Page 104 does not know who his accusers are, and does not know the names of the witnesses who will testify against him in the trial herein, and does not know what said witnesses, if any, will testify upon the trial of this cause. That the refusal of the prosecuting attorney to endorse the names of said witnesses upon the indictment herein, or to disclose the names of said witnesses to the defendant, or to his counsel, is in violation of article 432 of White's Code of Criminal Procedure of the State of Texas, and is unlawful, hurtful and prejudicial to the defendant herein, for the reason that defendant will be unable to properly prepare to meet and defend himself against the charges contained in said indictment without having some knowledge as to who his accusers are and upon whose testimony the indictment herein was found; that if any witness or witnesses shall testify to the hurt or prejudice of this defendant upon the trial of this case, he will then have no reasonable opportunity to rebut the testimony of such witness or witnesses by securing the presence of any other witnesses acquainted with the transaction in question, to testify as to the truth with reference thereto, and will have no opportunity to prepare to impeach the testimony of any witness or witnesses who may testify to any fact or facts that are hurtful or prejudicial to him; although defendant verily believes and alleges the fact to be, that if the names of said witnesses are now endorsed upon the indictment herein against this defendant, that he, the defendant, will be able upon the trial of this cause to prove the falsity of any testimony which may be given upon the trial incriminating the defendant, and will be able to impeach any witness or witnesses who may testify to any fact or facts incriminative of the defendant."
The bill further shows that the indictment in this case was returned on February 7th, and shortly thereafter this motion was filed, properly sworn to by appellant, when it was overruled by the court. This was done some two weeks before the cause was set for trial, and again on March 13th, the day of the trial, the appellant renewed this motion, and it was again overruled by the court. In approving the bill the court states: "The court in this and other gambling cases thought it proper in the light of experience to refuse this request — in the interest of the enforcement of the law. This motion was filed and put on motion docket and overruled March 7, 1912, when case was called, counsel called court's attention to this and asked if that ruling still stood, to which I replied, `It does.' If they had asked it I would have, as I did in other like cases after announcement byboth sides, required State and defendant to furnish each other with list of witnesses." Thus it is seen that the names were purposely omitted from the back of the indictment; that appellant timely requested the court to have the county attorney endorse their names thereon, which request was refused, and again before announcing for trial renewed the request, which the court says he intentionally refused until after an announcement of ready for trial had been made. After announcement of ready for trial, what time has a defendant to prepare his case for trial? Article 444 of the *Page 105 Code provides: The attorney representing the State shall prepare all indictments which have been found by the grand jury with as little delay as possible, and when so prepared, shall deliver them to the foreman, who shall sign the same officially, and theattorney representing the State endorse thereon the names of thewitnesses upon whose testimony the same was found. (Italics ours.) Why were those words placed in the Code? Has a trial judge or any judge the right to ignore the law when called to his attention timely? In construing this provision of the law in upholding the hands of the officers of the law, this court has gone far. It has held the provision directory and not mandatory, and that it does not effect the validity of an indictment; it has held that if a defendant waits until his case is called for trial to call the attention of the court to the failure to comply with this provision of the law, it comes too late, and will not be ground for a continuance. But we fail to find any decision of the court holding that if the request is timely made this provision of the law should not be complied with. What right has this court or any other court by construction to absolutely nullify this plain provision of the law? To uphold the action of the trial judge in this case would render its provision absolutely nugatory and this we can not get our consent to do. It may be that this appellant is guilty, and from the testimony adduced on this trial we are inclined to think he is, but we do not think to secure his conviction and confinement in the penitentiary any court has the right to absolutely override the law of the land. Our Constitution has provided that the accused "shall have the right to demand the nature and cause of action against him, and have a copy thereof," and in Harris' Texas Constitution, from page 85 to 89, will be found a long list of authorities upholding that provision of the law. Our Code has provided that he has a right to know the "names of the witnesses upon whose testimony the accusation and cause is founded." These are rights given him by our law, and the courts have as much right to ignore and nullify one as they have the other, and if that day ever comes in this State, no man will be safe nor secure in his life, liberty or possessions. While the courts and all good citizens want to see the law upheld and enforced, we for one do not want to see the day come when men will be sent to the penitentiary on the testimony of witnesses of whose credibility and truthfulness the prosecuting officers have so little faith that they are afraid for their names to be known for fear that they may be debauched and bribed or persuaded to give perjured testimony. All men who commit crime should be punished and held to strict accountability, but no citizen should be deprived of his life or liberty, branded as an infamous criminal, upon testimony that comes from so questionable a source as the State is afraid if the source is known it may be polluted or proven to be polluted if given time. Without wishing or intending to reflect on any witness in this case, such conduct would raise at least a suspicion that the State itself did not have that faith in the truthfulness *Page 106 and integrity of its witnesses that ought always to be manifest before another's good name is taken from him.
In another bill of exceptions it is shown that James Riley, a witness for defendant, had testified he was a clerk at the hotel, when the following proceedings were had:
The Court: "You say you never were up there in that poker room unless you were drinking?"
A. "As a general thing."
The Court: "I know you well enough to know you can understand me. Were you ever up there unless you were drinking?"
A. "Yes, I may have been."
The Court: "Do you know?"
A. "I have been up there and played poker."
The Court: "Did you ever play poker?"
A. "Yes, sir."
The Court: "Did you gamble there for money?"
A. "Yes, sir."
The Court: "All the time you have been paying money, paying rent to Strong?"
A. "Yes, sir."
This witness had testified to gambling in the club room, and what object and purpose the court had in having the witness confess he gambled there while sober as well as when drunk we are at a loss to understand. But if he had stopped there we, perhaps, would hold it harmless error, but when the court emphasized appellant's connection with the matter, it can be readily seen how harmful it would be. We agree with what is said in the Testard case, 26 Texas Crim. App., 260: "Wisely, we think, the law vests a trial judge with a broad discretion — to direct and control the introduction of evidence and the examination of witnesses," etc., but the court in so doing should never so conduct himself as to impress upon the jury his opinion as to the guilt or innocence of a person on trial. The last question propounded by the court to this witness would necessarily create in the minds of the jury an opinion that the judge thought appellant guilty.
Attached to the motion for a new trial are the affidavits of two jurymen, E.L. Greenwood and Sam E. Cannon. Mr. Greenwood swears that he had been voting for acquittal of appellant on each and every ballot, when on the second day the jury was out Mr. Cannon came to him and told him about being on the Warren Diamond jury, which failed to agree, and after the jury was discharged that Diamond entered a plea of guilty. The affidavit goes into detail and shows that Diamond was prosecuted also for operating a gambling house, and Greenwood says: "That affiant had no knowledge of the Warren Diamond case nor had he ever before that time heard of the same, but after the above mentioned statement had been made by the said juror, Sam Cannon, affiant realizing that said juror was under oath was by such statement made by said juror induced to finally agree to a verdict of conviction *Page 107 in this case; that said statement influenced affiant by reason of the circumstances aforesaid to agree to a verdict of conviction and affiant would not have so agreed if said statement had not been so made." Cannon in his affidavit says what Greenwood says is true, and that he did convey him this information, and used this argument with the juryman. Each of these matters, when taken separately, may seem to be trivial in their nature, but when considered together are of that nature that no conviction thus obtained should be permitted to stand. Therefore, I concur in the opinion reversing and remanding the case.