By indictment, appellant was charged with being drunk in an hotel, which is alleged to be a public place, etc.
He was arrested by a deputy sheriff and a justice of the peace for a different offense than that for which he is convicted in this case. When arrested appellant was in his room in the hotel, and in bed with a red headed woman who had a black patch on her mouth. He was required to get out of bed and dress himself. After being dressed, there was found whisky about his clothes. He was then taken to and placed in jail. These officers saw him at no other time or place in or about the hotel. In so far as the record discloses, Ellen Smith was the only witness who saw him in any portion of the hotel other than his room, and her testimony is to the effect that if he was drinking she could not discover it. The county attorney testified, that the defendant said to him, If I had not been as drunk as a dog, I would not have gone to bed with that whore in Harrold. * * * I was as drunk as I could be at Harrold. If I had been sober I would not have been in this trouble now." The officers testified that appellant was able to dress himself when arrested, and did not stagger as they conveyed him to jail. It may be seriously questioned if defendant was intoxicated when arrested by the officers, and the testimony of the only witness who saw him about the hotel, outside his room, excludes the idea that he was drunk.
But it may be conceded that appellant was drunk when arrested, and yet not be guilty of a violation of the statute under which he was indicted. In order to constitute the offense charged, the accused must get drunk, or be found in a state of intoxication, in a public place. The statute under consideration does not define the term "public place." Within the definition of that term, however, may be included hotels and taverns. "A guest room in an hotel is a part of the public hotel or tavern, in that *Page 39 it is for the use of the public business of the house in the entertainment of its guests," but it becomes private after it is appropriated by a guest, during his residence or stay therein, while a lodger in such hotel or tavern. So, when the room has been set apart to its occupant, it becomes a private room in a certain sense, in that it becomes his residence and "place of abode" for the time being. In it he has a qualified property, even as against the proprietor. In a certain sense, and to a qualified extent, it ceases to be a portion of the hotel or tavern, and becomes the private residence of the guest or lodger. Comer v. The State, 26 Texas Ct. App. 509[26 Tex. Crim. 509]. The testimony shows that appellant, if drunk at all, was drunk in his private room, and not in a public place. The judgement is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.