Cochran v. State , 26 Tex. 678 ( 1863 )

Mooee, J.

The exceptions to the indictment were properly-overruled. The only one of them which seems entitled to notice,, or upon which counsel have insisted in this court, is that which alleges a want of sufficient certainty in the indictment, because it does not allege the character of the liquor sold, to whom it was sold, nor the place where it was sold. The principle involved in this exception, has been fully settled by former decisions of this court. The case of Prior v. The State, 4 Tex., 383, decides that it is not necessary, in an indictment for playing cards in a house for retailing spirituous liquors, to state the name of the occupant of the house. In Sublett v. The State, it is said, that such an indictment need not contain any allegations for the purpose of identifying the particular place in which the playing is charged to have been done. And Horan v. The State holds, that an indictment for permitting “cards to be played in his house, said house being then and there situate in the county aforesaid, and kept by the said Horan for retailing spirituous liquors,” is sufficiently certain, although it was objected, that neither the particular-game that was played, or the house in which it was played, were pointed out by it. The code declares, (Art. 396, Code Crim. Pro.,) that “it is not necessary to state in an indictment, anything which it is not necessary to prove.” This indictment contains all the ingredients of the offence given in the code, and all that the State was required to prove. It has all the requisites-that the code of criminal procedure enumerates, to constitute a sufficient indictment. As was said in the case last referred to, the certainty prescribed for an indictment, docs not require so minute a description of the offence, as to entirely supersede proof of its identity, when the judgment is pleaded in bar to a second prosecution.

The charge of the court was correct, and the evidence .was. amply sufficient to sustain the verdict. That appellant’s witnesses did not hear the statement made by the witness for the State, when he purchased the liquor, by no means shows that the transaction did not occur as detailed by Mm. If, however, the witness had gotten the liquor without requesting that it should he charged to him, the other facts fully warrant the conclusion that it was sold. Appellant kept liquor to sell in quantities of a quart or more; the witness and others were in the habit of purchasing it of him. The only reasonable presumption would be, that appellant let the witness have it as a purchaser. It is also to be presumed, that he permitted it to be drank in his house. Every man has the right, and is supposed to control Ms premises; and wh$n an act is done in his house during his presence, without any effort on his part to prevent it, it must be inferred that it was done with his consent. As there is no error in the. judgment, it is affirmed.

Judgment affirmed.