Robinson v. State , 24 Tex. 152 ( 1859 )

Roberts, J.

One objection, taken in argument, is, that the court charged upon the weight of evidence, in telling the jury, that if the defendant occupied the house, and illegal gaming was carried on there, he would be presumed to have had notice of it, unless he could show, as matter of defence, that he had no notice of it. Considering all the circumstances developed in evidence, we cannot say that this was an improper conclusion of fact, calculated to mislead the jury; and the defendant not having excepted to it, at the time of the trial, as a charge upon the weight of evidence, it is not available now, even if we should consider that the charge was liable to that objection. (O. & W. Dig. 635, Art. 602.)

Another objection to the charge is, in substance, that it assumes that the defendant retained either a partial or conditional control of the rooms rented to Meroney, which gave him a right, and made it his duty- to prevent, illegal gaming in them, upon learning that it was carried on there. We do not think this a proper construction of the terms of the lease. The lease purported to direct the use to be made of the rooms by Meroney, and restricted him to using them only as bed-rooms, or sleeping apartments ; but it did not follow, as a consequence of that restriction, that the defendant retained a right to control the rooms, either partially or conditionally, so as to impose it upon him as a duty, to prevent illegal gaming.

The question in the case was, did the defendant have, really and substantially, the control of the rooms ; and was not the execution of the lease to Meroney a false pretence, a sham device, to shelter the defendant from responsibility ? Under the facts in proof, the court might well have submitted that question to the jury. It would have enabled them to have considered the whole case, in the true light, as dictated by their knowledge and observation of such matters.

We think the court incorrectly instructed the jury, as to the legal effect of the terms of the lease; and therefore the judgment must be reversed and the cause remanded.

Reversed and remanded.