Askey v. State

Hurt, Judge. Appellant is charged by the indictment with wilfully and unlawfully playing a game with cards at a certain public place, and at a certain house for retailing spirituous liquors. The State abandoned the allegation in the indictment which charged the defendant with playing cards “at a certain house for retailing spirituous liquors.” Hence this conviction was for ■card playing “at a certain public place.” Defendant moved the court to quash the indictment, but, as the indictment charged that the playing occurred at a certain house for retailing spirituous liquors, this motion was properly ■overruled. This allegation being abandoned, was there a good indictment remaining? If an indictment charges that the playing occurred “at a certain public place,” without alleging the facts constituting it such, will such indictment be sufficient? It will not. (Elsberry v. The State, 41 Texas, 158.) There was no attempt to prove that the place at which the playing took place was a public place. From the evidence it appears that defendant played one game of cards up stairs over a building in the town of Gonzales; that said building—the lower room thereof—some two months prior to this game had been used for retailing spirituous liquors. Upon this state of facts, the learned judge charged the jury that “if any person shall play at any game with cards, at any house for retailing spirituous liquors, store house, tavern, or -any other public house, or in any public street, highway or other public place, or in any out house where people resort, he shall be fined not less than ten nor more than twenty-five •dollars.” This charge covers each and every house and place .named in Article 355 of the Penal Code; and notwithstanding [560] rra house for retailing spirituous liquors” had been abandoned, by the State, the learned judge injects it into the case again, and virtually tells the jury that if the defendant played at such a house to convict him. Opinion delivered March 8, 1884. The charge should never depart from the allegations of the indictment. When the State abandoned the allegation with, reference to the house for retailing spirituous liquors, the prosecution was confined to proof that the playing took place at a' public place, and to this, or such a place, the charge of the court should and must be confined. However, an indictment which merely alleges that the playing occurred at “a public place,” without giving the facts constituting it such, being insufficient, the conviction was illegal and the judgment must be reversed. The judgment is reversed and the prosecution dismissed.' Reversed and dismissed.