State v. Norton , 19 Tex. 102 ( 1857 )

Hemphill, Ch. J.

In this case there is no assignment of error, and the first question is whether the rule, requiring such assignment on appeals in criminal cases, has been repealed by the new Code. The Attorney G-eneral cites in support of the affirmation of this proposition, the following Article of the Code of Criminal Procedure, viz. : Art. 1st, “ That this Code “ is intended to embrace fully all the rules applicable to the “ prevention and prosecution of offences against the laws of the “ State.” Section 4, p. 188, “ That from and after the first “ day of February, 1857, all Laws and parts of Laws which “ regulate and refer to the .prevention, suppression, prosecution “ and proceedings for the punishment of crime, shall stand “ repealed.” Also Article 27th of the Code, viz.: “ That “ whenéver it is found that this Code fails to provide a rule “of procedure in any particular state of case which may “ arise," and is therefore defective, the rules of the Common “ Law shall be applied and govern, when they are not incon- “ sistent with the general principles on which this system of “ procedure is founded.” And further, that by Art. 745, it is provided that the “ Supreme Court may make rules of proced1 ‘ ure as to the hearing of criminal actions upon appeal.”

In our opinion the effect of these provisions is, that the rule of practice requiring assignments of error in appeals in criminal cases to be made in the District Court, is no longer of force, and that this appeal cannot be dismissed for. the want of such assignment!

The question in this case is upon the validity of the indictment.

The averment objected to as insufficient, is to the effect that the game of cards was played at an out-house to which divers persons did then and there resort.

This, in the motion to quash, is stated as neither following the language nor being within the intention of the Statute which, in relation to the offence, uses the words “ out-house, “ where people resort;” whereas the indictment uses the special terms an outhouse where divers persons did then and there resort. It is not very easy to distinguish between the phrases an outhouse where people resort, and an out-house where divers persons resort. They are the same in sense and substance. The Court below may have been of opinion that an -out-house where people resort, meant one where the people usually or habitually resort; and that an out-house where the people or divers persons resorted to on only one special occasion, did not come within the purview of the Statute. If so, there was a misapprehension, as we conceive, of the intention of the law. The question as to what constitutes an out-house where people resort, has been so fully discussed in the three several cases of Wheelock v. The State, 15 Tex. R. 253, 257, 261, that we are relieved from the necessity of again entering upon the subject. The resnlt of those decisions is, that the out-house must be one to which the people have resorted on more than one occasion, or that more persons than those actually engaged in playing are assembled on the particular occasion at which the offence is charged to have been committed. Under this indictment, it was competent to prove that more persons than those actually engaged in playing were present on the occasion. The averment is sufficient, and there was error in quashing the indictment.

Reversed and remanded.