De Los Santos v. State

Appellant was indicted by the grand jury, charged with permitting gambling on premises under his control. The indictment reads as follows: "The grand jurors for the County of Webb, State aforesaid, duly organized as such, at the April Term, A.D. 1911, of the District Court for said county upon their oaths in said court, present, that Jesus de los Santos in the Count and State aforesaid on or about the 20th day of March, A.D. 1911, did then and there knowingly permit premises then and there under his control to be used as a place to bet and wager and to gamble with cards and as a place where people did resort to gamble, bet and wager, and as a place to keep and exhibit for the purpose of gaming a gaming table and bank; and the said Jesus de los Santos knowing that said games prohibited by law were being played on premises under his control did then and there knowingly permit said premises to be used. Against the peace and dignity of the State." Appellant filed a motion to quash the indictment, alleging that same "failed to allege the kind of gaming alleged to have been exhibited on the premises, and fails to allege the kind of bank alleged to have been exhibited for gaming, and fails to give any description of said alleged gaming table and bank." In the motion for a new *Page 520 trial it is also alleged that the indictment "fails to allege the venue of the offense." Presiding Judge Davidson has written an opinion in which he holds the indictment fatally defective, citing the cases of Eylar v. State, 37 Tex.Crim. Rep., and Mohan v. State,42 Tex. Crim. 410. By reading the above indictment and turning to these cases, it will be seen they are not in point. In this indictment, after laying the venue in Webb County, Texas, it is alleged "did then and there knowingly permit premises then and there under his control to be used," etc. No such averments were used in the Eylar case, or the Mohan case, but for the lack of such averments, the indictments were held defective. In the case of Smith v. State, 36 Tex.Crim. Rep., this court held, Presiding Judge Davidson rendering the opinion: "Appellant moved to quash the indictment, on the ground that, after the charge of breaking, in the language introducing the charge as to the intent to commit theft, the phrase `then and there' was not used. In the indictment the charge of breaking is coupled with the charge as to the intent by the conjunction `and.' Ordinarily, where the evidence consists of a series of connected acts, it is necessary, instead of repeating the time and place originally alleged, to use the phrase `then and there.' See Bishop's Crim. Proc., sec. 412. In this case the act was the breaking, and we think that the use of the conjunction `and,' coupling the intent with the breaking, was sufficient. It makes the indictment plain and intelligible, and sufficiently extends the original allegation of time and place to the succeeding averments in the indictment. See Harris v. State, 2 Texas Crim. App., 102." And the same learned judge who rendered the opinions in the Mohan and Eylar cases cited, in a later case, Butler v. State,46 Tex. Crim. 287, says: "Appellant questions the indictment on the ground that in the closing part of the indictment, to wit, the allegation, `and the said L.A. Butler did unlawfully and fraudulently take, misapply and convert the same to his own use and benefit,' etc., that it fails to show such a connection with what precedes as to embrace a proper allegation of time and venue. We do not believe this contention is sound. The indictment pursues the ordinary form laid down in White's Annotated Penal Code, section 138, omitting, however, in said clause above referred to the allegation, `then and there' after the word `did.' However, the indictment after alleging that he was county treasurer, and said funds being three thousand dollars current money of the United States of America of the value of three thousand dollars, came into his possession by virtue of his said office, and was then and there the property of Ward County, Texas, and the said L.A. Butler did unlawfully as above stated, etc. We think the conjunction `and' here sufficiently shows the connection, and carries forward with it the allegations `then and there,' showing *Page 521 the act of conversion was committed at the time and place before alleged." In the case of Baker v. State, 25 Texas Crim. App., 1, this court holds: "We are of opinion that the indictment is substantially sufficient in both its counts, and that the defendant's exceptions thereto and his motion in arrest of judgment were properly overruled. The locus in quo of the house burned is alleged sufficiently, the allegation being `a certain house then and there occupied, owned and controlled by him, the said Baker,' the words `then and there' referring to the time and county previously stated." In the case of Slack v. State, 30 Tex. 355, Judge Willie says: "The words `then and there' as used in an indictment are words of reference, and when time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words, and it will have the same effect as if the time and place were actually repeated." See also Campbell v. State,43 Tex. Crim. 602, wherein Judge Davidson again renders the opinion. Not only is this the rule in Texas, but in Bishop's New Criminal Procedure, it is stated: "When an indictment has stated one time and one place, whether in one count or more, each repetition thereof may, and in just propriety should, be laid as occurring `then and there' instead of by the longer form of expression." (Sec. 407) Bouvier's Law Dictionary thus defines the words: "`Then and there' — words of reference, and when the time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words." Hughes Criminal Law, sec. 2726, says: "If the words `then and there' precede every material allegation (after the time and place have been stated at the beginning of the indictment) it is sufficient." See also Am. Eng. Ency. of Law, vol. 28, p. 129; Ency. of Plead. and Prac., vol. 10, p. 519; Cyc., vol. 22, p. 321; Words Phrases, vol. 8, p. 6946. In these references there are numerous cases cited not only from this State, but almost every State in the Union. In this indictment it is alleged that defendant in the county of Webb and State of Texas on or about the 20th day of March, 1911, did then and there knowingly permit premises then and there under his control to be used as a place to bet and wager and gamble with cards, etc. This sufficiently alleges the venue of the offense, and it was unnecessary to describe the kind of table or bank, but the allegations in the indictment charge an offense under article 388b, title XLIX of the Act of the Thirtieth Legislature, and the court did not err in overruling the motion to quash the indictment. Neither do we concur in the opinion of the Presiding Judge in holding that the case should be reversed on account of errors in the charge. The charge, taken as a whole, is not subject to the criticisms contained in the opinion. Under the evidence in this case. it *Page 522 is shown that appellant rented a building divided into four rooms. A diagram is as follows: [EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.] The gambling took place in the room marked X. The sheriff testified: "I am the sheriff in and for Webb County, Texas. On March 20, 1911, about nine o'clock at night, I went to the saloon situated in the city of Laredo, Webb County, Texas, known as the Cantina Blanca. I had been informed that gambling was going on there. I took the deputy constable, Jacobo Salizar with me. This saloon is on Victoria Street, in a house having four rooms. The two front rooms are of brick or stone and the rear rooms are frame. The saloon is in a corner room, which has a door opening on Victoria Street and a door opening on a side street, one of the avenues. Next to the saloon is another room of the house with a door opening into the saloon. This room was used at the time as a restaurant. To the rear of the restaurant was another room used as a kitchen for the restaurant. On one side of the kitchen was another room of the house with a door opening into the kitchen. When I arrived at the house I went to the rear of it and through cracks in the rear wall I looked into the room on the side of the kitchen and saw some men at a table playing cards. I then went to the front of the house and entered the front door of the restaurant opening on Victoria Street. I passed through the restaurant, entered the kitchen and from the kitchen I passed through a door into the room on the side of the kitchen. In this room I found a number of men gambling. They were around a table upon which was a green cloth and they were playing a game of cards called monte. On the table there was also a box containing several packages of cards. And also on the table was a quantity of money and chips used in gambling. When I entered the room I saw a man with cards in his hands; he was dealing monte and the other men were betting. I told the man with the cards that the outfit was mine. I took possession of the cards, the box, the chips and the money that was on the table, which amounted to about $22 in Mexican money and $30 or $40 in United States currency. There were about ten men in the room when I went in. There is no door between the room where I found the gambling going on and the room where the saloon is located. I do not remember whether or not I saw the defendant at that house that night. I think I saw him there on the outside." *Page 523 Jacobo Salizar, deputy, testified he went with the sheriff on the night in question, and stopped in the kitchen and saw the defendant come out of the kitchen. He went out of the kitchen towards the saloon room. That he saw the barkeeper carry beer from the saloon to the room where the men were. Avelino Pena testified he collected the rents on the building, and that defendant had the entire building rented. That he had collected the rent for this building from defendant every month for about a year; that defendant pays for the entire house, and owns the saloon. J.M. Flores, deputy tax collector, testified that defendant was the owner of the saloon and had a license to run a saloon in that building. Inocente Hyme testified he was barkeeper for defendant, and that defendant had left Laredo about March 1 and gone to his ranch. That before defendant left for the ranch he rented the room in the rear of the saloon to Guillermo Cantu and instructed him to collect the rent. That Cantu occupied the room until about the 20th or 22d of March, and then left. That defendant returned from the ranch about the 13th or 14th, but he had not noticed him around the saloon until the night and after the sheriff had made the arrests. Witness says he did not see any gambling in the house, and did not know gambling was going on there. Defendant himself testified that he owns a ranch in Webb County of about 885 acres, and also the saloon in question, and employed Inocente Hyme to manage the saloon in order that he could attend to his ranch. He further testified: "The house in Laredo where my barroom is situated has four rooms. I rent this house from Mr. Hamilton. I rent two of the rooms in this house to a man by the name of Epifanio for restaurant purposes. About the 8th day of March, 1911, I rented the other rear room in the house to a man by the name of Cantu. I did not know this man Cantu, but I knew his brother, Jesus Cantu, who brought him to me and asked me to rent the room to him. This man Cantu told me that he wanted to rent the room to use as a barber shop, and I rented it to hint for that purpose. After I rented this room to Cantu, I left Laredo and went to my ranch down the river. It was about March 10, 1911, I think, when I left Laredo to go to my ranch. I returned from my ranch to Laredo about March 20 or 21, 1911. I reached Laredo about dusk. My residence is about seven blocks from my saloon. I went to my saloon about nine o'clock that night. I went into the yard in the rear of the saloon to urinate. There is no fence around the yard of the saloon. I then went into my barroom, passing through the kitchen of the restaurant and the restaurant. I do not recollect seeing Sheriff Sanchez in my saloon that night. I never gave anyone permission to gamble or run a gaming table or bank in any part of this house where my saloon is located. I give a saloonkeeper's bond for $1000, and I could not afford to do this. I had no idea that *Page 524 gaming was going on in that room I rented to Cantu. I would not have permitted gaming there if I had known it, because I am under bond. I did not know that Jesus Cantu, the brother of Guillermo Cantu, was running a monte game at the saloon of Narcisso Alanis. I did not know that Guillermo Cantu or Jesus Cantu were gamblers. I did not investigate whether the room was being used as a barbershop or not." The State proved that Guillermo Cantu, the man to whom defendant claimed to have rented the room, had been convicted on a charge of vagrancy in the courts at Laredo, the charge being based on an allegation that he was a common gambler. This, in substance, is the testimony, and by presenting the testimony of the sheriff and the defendant almost in full, the issues in the case are thus shown. The court charged the jury: "You are instructed that it is provided by law that if any person shall knowingly permit property or premises under his control to be used as a place to bet or wager or to gamble with cards, or to keep or exhibit for the purpose of gaming any table or bank or as a place where people resort to gamble, bet or wager, he shall be guilty of a felony and shall be punished by confinement in the penitentiary not less than two nor more than four years. "Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Jesus de los Santos, on or about the 20th day of March, 1911, in the county of Webb and State of Texas had under his control the building known as the Cantina, Blanca or White Saloon, and that one Guillermo Cantu then and there used a room in said building as a place to bet and wager or to gamble with cards or to keep or exhibit for the purpose of gaming any table or bank, or as a place where people resorted to gamble, bet or wager, and if you further believe from the evidence beyond a reasonable doubt that the defendant knew that said Cantu was so using said room, and permitted said Cantu to so use it, then you will find the defendant guilty as charged in the indictment and assess his punishment at confinement in the penitentiary not less than two nor more than four years. "You are instructed that where a person rents the whole of a building from the owner and uses a part of it for his own purposes and sublets other parts of it to other persons he is nevertheless in control of the whole building within the meaning of the gaming laws. "If the defendant sublet or rented a room in the White Saloon building to Guillermo Cantu to be used by said Cantu as a barbershop and defendant did not know that Cantu was using said room for gaming purposes (if he was so using it), then defendant is not guilty; and in case you have a reasonable doubt as to this issue you must give defendant the benefit of such doubt and acquit him. "The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt; *Page 525 and in case you have a reasonable doubt as to the defendant's guilt you will acquit him, and say by your verdict `not guilty.'" It is thus seen in the charge the court required the jury to affirmatively find that defendant knew that said Cantu was so using the room, and then permitted him to so use it before they would be authorized to find him guilty, and further instructed the jury that if he rented the room to Cantu to be used as a barbershop, and did not know that Cantu was using the room for gaming purposes (if he was so using it) to acquit defendant, and if they had a reasonable doubt on this issue to give the defendant the benefit of such doubt and acquit him. Taking this charge as a whole, we do not think it subject to the criticisms contained in the opinion of the Presiding Judge, but that it fairly, fully and clearly presented the issues in the case, and in a way the jury could not be misled. The jury had to affirmatively find that Cantu was using the room for gaming purposes, first, and, second, that defendant knew he was so using the room, or they would acquit defendant. Inasmuch as defendant had paid and continued to pay the rent on the entire building, and our statutes (Revised Statutes, article 3250), provide that a person renting premises shall not sublet or lease same during the term of the rental contract to any other person without first obtaining consent of the landlord, and in this case no consent was asked or given by the landlord, we think the charge as written was as favorable as the facts called for, especially so taking into consideration that provision of the law which provides that the use of such premises by any tenant for any of the prohibited purposes shall terminate all the rights of the tenant in the premises. If defendant knew, as the charge required he should know before he could be convicted, that the premises were being so used, and he permitted such premises to be so used, he would be guilty under the law. The special charge requested is not the law, and the court did not err in refusing to give same. This disposes of all the bills of exception in the record, and the other matters are not presented in a way we are authorized to consider same. The constitutionality of this law was passed on in Parshall v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 759, and we adhere to the opinion in that case. The judgment is affirmed. Affirmed.