Martin v. State , 144 Tex. Crim. 313 ( 1942 )

As submitted by the trial court in his charge to the jury, the count in the indictment upon which this conviction is predicated charged that appellant did directly and through his agent, Joe Bostick, "unlawfully keep and exhibit for the purpose of gaming, a gaming device, to-wit, a marble machine."

Appellant, in his motion for rehearing in this court, for the first time attacks the sufficiency of the indictment and insists that the term "marble machine" is vague, indefinite and uncertain; and that, in addition thereto, the allegation that the offense was committed directly and through an agent renders the indictment duplicitous.

An indictment that is fundamentally defective as a matter of substance may be attacked for the first time in this court. Branch's P. C., Sec. 251; Osborne v. State, 245 S.W. 928,93 Tex. Crim. 54. The instant indictment was not subject to the defect alleged, but, to the contrary, was valid and sufficient. It alleged the statutory elements necessary to constitute a violation of the statute (Art. 619, P. C.). The State is not required in its pleading to set forth its evidence. The indictment was not duplicitous as contended by appellant. Stevens v. State, 159 S.W. 505, 70 Tex.Crim. R.. Moreover, a duplicitous indictment is not fundamentally defective. Villalva v. State, 151 S.W.2d 222; Boyd v. State,39 S.W. 55, 118 Tex.Crim. R..

Appellant insists that we were in error in the disposition made of the matters complained of in his Bills of Exception Nos. 1 and 2. We have again examined the record touching these matters, and remain of the opinion as originally expressed.

Appellant's motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.