Having read the opinion of the majority, I am the more fully convinced that I was right in my heretofore filed dissent. That this is a case of circumstantial evidence, as I understand this record, is not debatable. Judge Harper relies upon the Cabrera case in support of the proposition that this is not a case of circumstantial evidence. An inspection of the Cabrera case will disclose the fact that two witnesses testified to seeing Cabrera shoot into the window where Judge Welch was killed; they were eyewitnesses to the shooting. That made it a case of positive evidence. In this case the evidence shows that the State relied upon circumstances altogether to prove knowledge on the part of defendant that gambling was going on in the room he rented to his subtenant. He was not present in the room, and there is no fact that connects him with knowledge of it except some weak circumstances. The questions are fully presented as required by the strictest construction of article 723 for adjudication. I still adhere to my original dissenting opinion, that the indictment was fatally defective, fails to charge any offense under the authorities which stands harmonious and unbroken in this court.
I do not care to review the case further than I have heretofore discussed it, and make these few additional statements. I adhere to what I have heretofore written.
Believing the judgment ought to be reversed and the prosecution dismissed, I enter this my additional dissent. *Page 533