Bosshard v. State , 25 Tex. 207 ( 1860 )

Bell, J.

—The indictment is founded upon art. 419 of the Penal Code. That article provides, that “if any person shall permit any game, prohibited by the provisions of this chapter, to be played in his house, or a house under his control, he shall be fined not less than $10 nor more than $100.” The indictment in the case before us charges, that the appellant did permit divers persons to play with cards, at the game of euchre and at divers other games with cards, at a house then and there kept, and under his control, for retailing spirituous, vinous, and malt liquors; the same house being a public house where people resort., The indictment clearly defines the offense which art. 419 of the Penal Code prohibits. The exception, therefore, that the indictment did not describe any offense known to the law, was properly overruled by .the court.

The court did not err in permitting the indictment to be amended for a defect of form merely, such as the insertion of the word “court” after the word “district” in the first line of the indictment. Art. 488 of the Code of Criminal Procedure expressly treats that portion of the indictment which shows in what court the indictment is presented as form, and not matter of substance. Art. 508 of the Code of Criminal Procedure authorizes the amendment of an indictment, where an exception to it merely on account of form is sustained by the court.

The exception to the indictment, because it did not charge that anything was bet upon the game described in the indictment, was properly overruled by the court. Art. . 411 of the Penal Code provides that, in prosecutions like the present, it shall not be necessary to prove that any money, or article of value, or the representative of either, was bet at such game; the offense being complete without such proof. It not being necessary to prove that anything was bet on the game, in order to make out the offense, it was equally unnecessary to allege in the indictment that anything was bet; because art. 396 of the Code of Criminal Procedure provides, that “it is not necessary to state iri an indictment anything which it is not necessary to prove.”

The verdict of the jury was in accordance with the evidence, and the judgment of the court below is

Affirmed.