Conviction is for keeping, and permitting the keeping, of building and room for the purpose of being used as a place in which to gamble. Punishment is assessed at two years in the penitentiary.
The evidence is amply sufficient to support the verdict and judgment, and will not be discussed unless necessary in considering some bill of exception.
The indictment contained two counts. The court sustained a motion to quash the first, but overruled it as to the second, and as to this ruling appellant's first complaint is urged. The second count is an exact counterpart of the one upheld in Harvey v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 1004; See also Francis v. State, 90 Tex.Crim. Rep., 233 S.W. Rep., 974; Deisher v. State, 89 Tex.Crim. Rep., 233 S.W. Rep., 978; Fridge v. State, 90 Tex.Crim. Rep., 233 S.W. Rep., 979.
State's counsel propounded to his witness Letz the following question: "This place here of Brown's (appellant), which he was running mighty near all the time, it was known as a gambling house wasn't it?" Objection was interposed because (a) there was no allegation in the indictment to that effect, and, (b) because the question was leading. The objection being overruled the witness answered: "Well, if we wanted to play a little poker we would go up there. Some of them called it a bed room, and some of them called it a gambling room. Yes, sir, I have been in that room more than one time, several times." The first ground of objection was not tenable, *Page 411 but the question was leading. The answer, however, in the light of the other evidence does not call for reversal.
Complaint is made that the jury having found appellant "guilty as charged in the indictment," no judgment could properly be entered thereon notwithstanding the court submitted only one count for the jury's consideration. Appellant bases this contention upon that part of the second count which alleges that appellant "did then and there knowingly permit said property and premises to be used as a place where people resorted to gamble, bet, and wager upon games then and there played with cards," his point being that although the court did not submit the first count, there is no way to determine whether the verdict relates to the allegation in the second count which charges him with keeping a building and room for the purpose of being used for gambling or whether it relates to that portion of the second count above quoted. Again the similarity of the Harvey case (supra) appears. The part of the count quoted was not submitted to the jury either in that case or the instant one and it not being before the jury we could scarcely assume that the verdict had reference to it, but more logically conclude that the verdict referred to the charge in the indictment to which they were restricted by the instructions of the court. The case of Wood v. State, 84 S.W. Rep., 1058, to which we are cited by appellant is not in point. The decision there turned upon a duplicitous indictment. We have no duplicity here. The averments quoted charge neither a felony nor misdemeanor, as is apparent from the Harvey case (supra), and may be properly treated as surplusage.
Complaint is made because the State was permitted to prove over his objection that he played and bet at a card game, he not being charged therewith. This exact point is decided adversely to the contention in Sanchez v. State, 90 Tex.Crim. Rep., 233 S.W. Rep., 983.
The vagrancy statute, Article 634, Sub. K of the Criminal Code, Acts of the Legislature, 1909, page 111, did not repeal Article 559, Penal Code, under which the prosecution in the present case proceeded. Harvey v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 1004; Fridge v. State, 90 Tex.Crim. Rep., 233 S.W. Rep., 979; Parshall v. State, 62 Tex.Crim. Rep.; 138 S.W. Rep., 759; Ex Parte Oates, 91 Tex.Crim. Rep., 238 S.W. Rep., 930.
Other questions are presented, all of which we have examined. We find no merit in them, and do not deem them of sufficient importance to discuss.
The judgment is affirmed.
Affirmed. *Page 412
ON REHEARING. October 3, 1923.