Musey, Alias Brown v. State

Appellant files a lengthy motion. We are still of opinion that the allegation in the indictment that appellant kept and was interested in keeping a room for the purpose of being used as a place to bet and wager and gamble with dice, did not render the indictment duplicitous. We have examined with interest appellant's argument, but are unable to agree with the soundness of his reasoning.

Appellant again urges that the allegation of venue was insufficient. The indictment is set out in the original opinion. Restating such parts as affect the issue of venue, it was alleged that Brown * * * in the County of Galveston and State of Texas, did then and there * * * keep and was interested in keeping a room * * * for the purpose of being used as a place to bet and wager, etc. The cases cited and relied upon by appellant are both written by the same learned member of this court, in which it was held that an allegation that the accused in a certain county rented property *Page 118 and premises for the purpose of being used as a place to bet and wager, etc., was insufficient to allege that the property involved was located in the county in which the renting was done. The holding in those cases goes no further than to say that inasmuch as the rental contract might be made in one county for property situated in other counties, that the indictment on its face failed to sufficiently allege that the property referred to was situated in the county where the renting was done. In the case before us it is affirmatively alleged that the appellant kept in Galveston county, Texas, a room, etc. We think the case here clearly distinguishable from the cases cited by appellant. We are of opinion that the venue here is sufficiently alleged.

Further examination of the testimony given by the jurors upon hearing of the motion for new trial, confirms us in the conclusion that there was no error on the part of the trial court in overruling said motion. We think the testimony not sufficient to show that the jury received other testimony which could have bearing upon the issue in the instant case, or which could have influenced the verdict.

The motion for rehearing will be overruled.

Overruled.