In the opinion in this case, we held the first three assignments of perjury in the indictment good. We were laboring under a misapprehension of the contention of appellant in regard to these assignments. The first assignment is based upon the testimony given before the grand jury, that appellant had not seen Jim Love exhibit or keep a table or bank for the purposes of gaming, etc. This is alleged to be material, and was material. The indictment charges that, "whereas, in truth and in fact, the said John Fry (appellant) had seen the said Jim Love keep and exhibit a gaming table or bank for the purposes of gaming," etc. The defect in this assignment consists in alleging this matter in the alternative. It is not alleged *Page 588 that he did see Love keep and exhibit a gaming table, nor is it alleged that appellant saw Love keep and exhibit a bank; but it is alleged that appellant saw Love keep and exhibit one "or" the other — a gaming table "or" bank. Now, if a gaming table and bank are the same thing, this allegation is sufficient. But, if there be a difference between a gaming table and a bank, then it is insufficient. Is there a difference? We think there is. See, Webb v. State, 17 Tex.Crim. App., 205. These observations apply with equal force to the second and third assignments of perjury. However, there is a good assignment for perjury, to-wit, that pertaining to monte. The indictment charges that it "became and was a material inquiry, before said grand jury, * * * whether the said John Fry (appellant) had seen any person bet or wager at a game played with cards, called 'monte.' " The indictment alleged that appellant testified, before said grand jury, that he had not seen any person bet or wager at a game played with cards, called "monte." The closing words of this assignment in the indictment are as follows: "Whereas, in truth and in fact, the said John Fry had seen persons bet or wager at a game played with cards, called 'monte,' " etc. The objection to this assignment is that there was no such game played with cards as monte, and therefore this was immaterial matter; that monte is a banking game, and is not known as a "game played with cards." We do not agree with this contention. The game of monte, although a banking game, is a game played with cards; and it is a game where the players bet on certain cards of a layout, and win or lose according as others drawn from the pack do or do not match with these. As above stated, this assignment is good, and was amply sustained by the evidence on the trial. As was said in the original opinion, "there was no motion made to quash the indictment or any assignment of perjury therein contained," and there was no objection to testimony introduced to support any assignment. The court was not requested to confine the jury to this good assignment, or any particular assignment. This matter was first brought forward in the motion in arrest of judgment. We adhere to the rule, stated by Mr. Bishop, which is given in the original opinion in this case. There being a good assignment in the indictment, and the evidence in the record supporting that good assignment, although there is evidence tending to support the bad assignments, they will be treated as surplusage, and the case will be considered as if testimony had been admitted on the good assignment not pertinent thereto, which could have been excluded, but was not objected to. This, as we understand it, is the rule laid down by Mr. Bishop; and it appears to us to be a sound and logical rule. If the defendant chose not to make any motion to quash the indictment, or any of the particular assignments, and not to object to the introduction of evidence, notwithstanding the bad counts or assignments in the indictment, yet, if there is a good count or assignment, and the testimony supports it, the verdict will be applied to such good count or assignment; and it will make no difference in this regard if the court may *Page 589 have charged on the bad counts or assignments as well as on the good one. Where the question is raised for the first time on motion in arrest of judgment, the verdict of the jury, where the evidence supports it, will be applied to the good count or assignment, and the judgment upheld. See, 1 Bishop's Crim. Proc., § 1015, Subdiv. 2. The motion for rehearing is overruled, and the judgment affirmed.
Motion Overruled.