Robertson v. State

Appellant was convicted for knowingly permitting property under his control to be used to gamble with cards, or knowingly permitting property under his control to be used as a place where people resort to gamble, and his penalty fixed at two years confinement in the penitentiary.

The statute under which the conviction was had is article 559, Penal Code, which was, before the revision of 1911, article 388b of the Acts of 1907, page 107. The said article is as follows:

"Article 559. If any person shall rent to another, or shall keep or be in any manner interested in keeping, any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes, or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, or shall knowingly permit property or premises of which he is owner, or which is under his control, to be so used, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things, are licensed by law or not; and any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

There were two counts in the indictment which were submitted to the jury for a finding. The first of these, omitting the usual parts, is as follows: "That on or about the 1st day of September, 1911, and before the presentment hereof, with force and arms in the county and State aforesaid, Henry Robertson did then and there unlawfully and knowingly permit property which was under his control, towit (a certain house, describing it), to be used as a place to gamble with cards."

In order to show the basis for this count in the indictment we will give that portion of the above article 559, which we think clearly is the offense denounced, and in doing so will omit all the other portions of the article which are neither requisite nor proper for the purpose indicated. It is:

"If any person shall knowingly permit property which is under his control to be used to gamble with cards, he shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary not less than two nor more than four years."

The other count submitted by the court, omitting the usual parts, is:

"That in the State and county aforesaid Henry Robertson did then and there unlawfully and knowingly permit property which was under his control, towit (a certain house, describing it), to be used as a place where people resort to gamble with cards."

Likewise, quoting that part of said article 559 which applies to this count, it is:

"If any person shall knowingly permit property which is under his control to be used as a place where people resort to gamble, he shall be guilty of a felony and upon conviction shall be punished by confinement," etc., the same as above.

Then applicable to both of these offenses defined and denounced, the latter part of said article 559, quoting in the same way, is: "And any place shall be considered as used for gaming if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

Appellant's main, if not his sole, contention is, that article 559 is not susceptible properly of the construction that we have placed upon it by illustration above, but that as a prerequisite and necessary part thereof, the offense is, and the indictment must allege, that the property where the gaming is alleged to have been permitted, or that the resort thereto for that purpose,shall be kept for the purpose of being used as a gambling house. In other words, that the indictment must allege, and in order to secure a conviction, the State must prove, not merely that the appellant permitted the property under his control to be used to gamble with cards, or as a place where people resort to gamble, but that it must allege in the indictment and establish by the proof that he kept the place as a gambling house for thatpurpose. In order to further state appellant's contention, we quote from his brief as follows: "It is evident, and we take it beyond dispute, that to constitute the direct offense of keeping, the premises must be kept for the purpose, nor would any other character of keeping be sufficient to constitute an offense, under the permitting phase of the statute. The statute simply intending clearly to make it an offense to keep a house for the purpose of gambling, or to knowingly permit anyone else to keep a house under one's control for the purpose of gambling. The same character of keeping and the same purpose for which it was kept being identical and necessary elements of each of the offenses. The term ``so used' evidently referring back to the character of use inhibited by the first clauses of the article and intending to prevent the keeping of any building for the purpose of being used as a place to gamble with cards. Whether the act should be done by the person in charge, or merely permitted by one in control, the same character of keeping and the fact that it mustbe kept for the purpose are not only necessary elements of the offense in each instance, but constitute the very gist of the offense."

Appellant preserved and presented his questions and contention in various forms. First, by motion to quash the two counts of the indictment under which the conviction was had; second, by excepting to the charge of the court presenting the questions to the jury for a finding as charged by the indictment; and, third, in his amended motions in arrest of judgment and for a new trial.

The only other contention of appellant necessary to be considered, is his contention that the evidence was insufficient to establish that appellant was in such control of the property as that he could be convicted of permitting gaming thereon; or rather, his contention is that the evidence clearly established that he had no such control as that he could be convicted for permitting such property to be so used.

We have thus stated appellant's contentions so that the whole matter can be discussed at once and together. It is unnecessary to take up each separately.

It is the universal rule that when a verdict is attacked because of the claimed insufficiency of the evidence to support it, for this court to consider the evidence solely with the view of determining whether it was sufficient. And not to consider that there was evidence authorizing an acquittal. In other words, we pass upon the sufficiency of the evidence solely as a legal question.

The evidence in this case was amply sufficient to authorize the jury to find, and it was sufficient to clearly establish, that Frank Smith, a witness in the case, was the owner of the house in Mart, Texas, described in the indictment; that the house was on a side street with a very short space intervening between it and the rear of the saloon, fronting the main street, which saloon was run by said Smith a while and later by another or others; that this was a two-story house with a large attic above the ceiling of the second story; that appellant had rented from Smith, and been in exclusive control of, the second story of this house for several years continuously before the indictment in this case and even up to the time of the trial, which he used as a rooming house, there being several, — perhaps eight, — bedrooms on the second floor; that the first story was unoccupied and was not used during this time for any purpose; that the second story was reached by an ordinary stairway from the ground floor up to the landing on the second floor; that a door was at the entrance to this stair on the ground floor. Smith testified that the dimensions of this house were 36x20 feet or 24x40 feet; that the attic was of these dimensions, and was not cut up or subdivided in any way; that the attic was made by the roof sloping from the center to each side, as is usual, and that the edge of the roof came clown to about the ceiling of the second story or floor of the attic; that persons could not stand erect in the attic at either side where this roof came down, but they could stand erect in the center of the attic where the top of the roof began. How far on either side from the center persons could stand erect is not disclosed other than by the general description of the attic above. Some four years before this offense was charged, appellant wanted to use this attic as a kitchen and for this purpose Smith fixed it up for him and for a while rented it to him for that purpose, and he so used it, paying $1 per month; this was for only a short time and more than four years before this offense. Afterwards for a few months, which was more than three years before this offense was charged, Smith rented it to another negro, who used it for a few months, then vacated it, or gave it back to his landlord. Since that, which was more than three years before this indictment, Smith had not rented the property to any person for any purpose, and the only personal property he had therein was one or more pool table chairs. Smith testified they belonged with some pool tables he had, and that they "were around at the saloons and around; that every saloon very near has one." "I have not used that attic for anything during 1909, 1910, or 1911, only the chairs were up there that were mine. I have not used it for anything except to leave the chairs up there. I have not used it for any other purpose." It seems they had been there for several years. The sole and only entrance to this attic was through the door on the ground floor to said stairs, then up said stairs to a landing on the second floor, and thence into, and through, one of the rooms rented, used and controlled by appellant continuously for all of these years. Then up a ladder from this room through a hole in the ceiling as an entrance, to said attic. The witnesses differ about the character of this ladder, some claiming that it was a kind of stair steps made out of 2x4 stuff, nailed to the wall and the floor, but the jury were authorized to find, — because some of the witnesses so testified, — that it was a loose ladder, not fastened or attached either to the floor or wall, but was taken up and down for ingress and egress to said attic as occasion demanded, and that it could be so taken up and down and so used and was so taken up and down and used. That this entrance or hole to the attic was a small place and only one man could go through it at a time; that it was only some fifteen or twenty inches wide, and said hole in the ceiling of the second story, or in the floor of the attic, was a little scuttle hole just room enough for a man to get through; two men could not pass through it at all, and said scuttle hole was just like the holes that are used in ceilings in case of fire.

The only rights whatever reserved by Frank Smith from appellant was the right of ingress and egress for any tenant to whom he might rent the attic; that he had not rented the attic to anyone at any time within the last three years before this charged offense. There was no claim or intimation that any of the numerous parties, as hereinafter shown, who resorted to said attic for gambling purposes were the tenants of Smith, or had any right or claim whatever of ingress or egress to said attic.

The evidence clearly and without doubt shows that appellant had the absolute control and right of control of the said door below, leading to the said stairway from the ground to his said second story, and to the whole of the second story, except as stated above, the sole right of ingress and egress to the attic for only a tenant or renter of Smith for the attic. Among other things said Smith testified: "I did not know that during the years 1910 and 1911 that Uncle Henry (appellant) was using this room (the attic). I did not know that he was using it for a reception room for forty or fifty Mexicans and negroes at a time during the week at nights. I know this, that sometimes I went up there and negroes were setting up there just as thick as they could be. I went up there when they were there setting around. . . . In order to get up to that attic a person has to go through one of the rooms that Uncle Henry (appellant) has rented and that he is in control of. You can not get to the attic without going through the room that he has absolute control of. . . . There is just a little scuttle hole through the floor where you go up into the attic like one that is used for fire purposes. You can go and move a little board like and go up through the ceiling and get up in the attic; that is the only way there is to get up there."

Among other things, J.B. Fikes testified that he had been up in that attic three different times. He is shown to have been a farmer, and worked a good many negroes; that he brought them to the town of Mart frequently on Saturdays and then took them back with him late in the evening. "On the occasion of my first visit up there (in said attic) I was getting them (his negroes) out of town. That negro went over to Mart with me from the farm, and about sundown I commenced to search for him, and I inquired from other negroes where he was and they told me. I found the negro in old Henry's (appellant's) dive in that three-story building. He was up there in that attic. I went up there myself. There was a big crowd of negroes up there, — about as many as could get up there. I suppose there were forty or fifty head. Henry (appellant) was up there; he was engaged in gambling; this negro here, Henry (appellant), was engaged in gambling. I do not know what kind of game he was engaged in. I went there, got my negro and went out of there. . . . Henry (appellant) was up there in the attic gambling with some parties. He had a monte game going on and they had a crap game. There were three games going on. I think there were enough negroes there to run three games successfully. There were about as many there as could get around. Henry (appellant) was engaged in the game himself. . . . The next time I was up there was along in May. I went up there then to get some of my negroes. I found two of them up there. There was quite a crowd of negroes up there that time. There looked to be twenty-five or thirty head up there. They were gambling. Henry (appellant) was there. He was in the game. They were playing the same old games up there, monte and craps. They play monte with a deck of cards. . . . I think he (appellant) was engaged in playing seven-up. I think that is Henry's game. That is his stronghold. I found my negroes; they were up there. I went up there the third time after my hands. Gambling was going on up there that time. There was a crowd up there. Henry (appellant) was up there." This witness showed that all of his negroes and the other negroes who were up there were gone and had left the country and that there were none of them in the country now. "I knew Henry (appellant). He was there; Henry was there playing seven-up, playing with some more negroes; he was playing every time I went up there."

K. McKenzie, among other things, testified that he knew appellant in Mart and had been all around over Mart and knew appellant's place of business. "It is out back of a saloon in a two-story building. It is a two-story building back of what used to be Frank Smith's saloon, which is still used as a saloon. . . . I have been up in that building. I was in the second story, and one time I was on in the ceiling of the second story. . . . There were between fifty and seventy-five head of negroes gambling up there. I went up there for three negroes, of mine. I found them. I found one of them right at the trap door where I went in. The door is a little scuttle hole that you go through. . . . I could not answer whether all of the negroes that were up there were gambling or not. I saw Henry (appellant) up there. He was banking a monte game. . . . I did not stay there long enough to see whether anybody won or lost any money. They proceeded with the game while I was there. . . . It was in the ceiling of the building where they were. . . . I did not get clean up in this ceiling. I was on the ladder looking up in this ceiling. I was on the ladder. A negro put the ladder up for me to climb on. He put the ladder against the wall. He picked it up and set it up against the wall. I climbed up far enough on the ladder to get my negroes. I got my negroes, put them in the wagon and went home. That ladder there was not a fixture. Dick Knight told me to go up there for my negroes. He said they were up in there gambling. I went over there, and told the negro I wanted to get my negroes out from up there, and he said they didn't allow white people up there. ``I don't give a damn what you allow.' He set the ladder up, and I just got about far enough to get my negroes and I came on down, and got in my wagon, and went home. He (his negro) had $7 and I took it away from him. I gave it back to him when I got home. He told me he won it in a game. He was piking at a monte game when I went up there. The table was covered with cards. Henry (appellant) was banking a game. He was paying off the people that won. He was taking it in if they lost, and paying it out if they won. That negro over there, the defendant, did that. Henry (appellant) was sitting down. The other negroes were all standing up. The majority of them were standing up. . . . Henry, the negro right there (appellant), had the deck of cards. He was changing money, taking it when he won, and paying it out when they won. When they lost he took it in as far as I saw. That was what was happening, as far as I saw the game while I was there. The ladder was against the wall downstairs. A negro fixed the ladder up and let me up on it. I do not know who that negro was. That was an ordinary ladder, the best I remember about it. It did not look like a pair of rough steps. It was a ladder. It was a short ladder. It did not have more than six or eight slats across. The best I remember it was a short ladder from the ceiling. It was a common, cheap built ladder."

W.E. Sansom, another witness, among other things, testified that he was a farmer, living near Mart and worked several negroes; that he took them to the town of Mart occasionally and then carried them back to his farm. That he went up in this said attic at one time hunting for his negro hands. "I went up in the top part of the building, in the attic part. I went up on the ceiling of the second floor. I saw a bunch of negroes up there. I saw some cards and I saw some money and I suppose they were gambling. There were two tables up there." The witness then showed that he did not at that time know appellant and did not know whether appellant was up there or not; that at the time he was up there there were somewhere about fifteen or twenty negroes up there.

Frank Rhodes, among other things, testified that he had known appellant for about four years; went to Mart often and knew where appellant's hotel was. "It is right behind the saloon that Frank Smith keeps. I have been in that building. I have been in the building four or five times since last cotton season. I saw Henry (appellant) up there. He was always there when I went up. When I went up there I saw going on what I went up there to do. They were gambling. I went up there to gamble. I gambled while I was up there. . . . When I went up there Henry (appellant) was sitting behind a table where they were shaking dice. He had his box, and when they would make a pass he would take the money, and put it in the box. It was a tin box. I do not know what he put it in there for. A fellow would have to pay his fee. That is what he was putting in the box. I never did see Henry play in any game, only he was sitting at the head of the table. The others were sitting around the table, and were making their passes. I also saw a monte game up there. The men would get around the tables on both sides, and they would deal monte. You play monte with cards. There was not any other kind of game going on up there except these two at that time. There were three monte tables up there, and one crap table. Those were all the games that they were able to pull off at one time. Going on every time I was up there. Henry (appellant) was taking the money, and putting it in the box. He always had a box there. He sat at the head of the table all the time. . . . I just went up there because I knew they were playing up there. There were four tables up there. I can not specify the time when I was up there. It was nearly every time that I went to town. That was this year. Those four tables have been there all the time this year. I first went up there this year early in the year. There was a chair at each table. There were four tables and some chairs at each table. There were four chairs up there. Henry (appellant) was putting the money in the box. He would get the pass like. Henry (appellant) was not shooting, he was only banking. . . . The game was always going on when I got there. I never did have any conversation with Henry about going up there. I would just go up there. I never asked Frank Smith if I could go up there. I know that I saw Henry (appellant) and I know I saw him there every time I went there. He was the only one I saw taking money and putting it in a tin cup. That was always on the third floor."

Aaron Matthews, among other things, testified that he knew appellant and knew where his place of business was, and identified it as the others as right back of Howell's saloon; that there was just a little alley way between the two places. "I have been in the attic above the ceiling above the second floor. I have been up on the second floor. I have swept there several times. I did not stay there. I saw some fellows gambling there one time. I do not know how many there were in the game. There were as many as seven or eight. I told them to move, that I wanted to sweep there. I do not know exactly how many there were because I did not pay much attention to them. They were not white people. I think two or three of them were Mexicans. . . . I went up there to sweep out for Uncle Henry (appellant). He told me to go up there and sweep out, and said that if I found any bottles I could have them. I could get the bottles and go down to the saloon and sell them for beer. He just called me when I was not doing anything, and told me to go. He told me to go up there several times and sweep out. I will say that I went up there at his request, to sweep out, five or six times. I have been up there a whole lot of times. I saw them gambling when I went to sweep out. They were gambling at the same place I swept out. They were gambling when I went to sweep out and I told them to move. When I saw Henry (appellant) he was down on the bottom floor. He looked like he was going to walk away. He could have come back, and passed me if he wanted to. I have swept out several times for Uncle Henry. When I saw them gambling, they were on the bed in the room, on that side. They were in the room next to the last room on that side. I did not know they were gambling. I was sweeping, and they were playing on the bed. . . . That is where the rooms are. I have been up above that. I went up there for some bottles. I saw some fellows down that way. I was going after bottles and I just got them and did not go any further." In speaking of his having signed a statement before the county attorney, he said he told him he saw them gambling. "I saw one little stack of money on this side. They had cards and they were standing up around there. . . . Uncle Henry (appellant) here is supposed to run a rooming house there. That is what he says. He is supposed to run a rooming house in the second story of that building. He has got me to sweep out for him a number of times. The gambling that I am talking about there was in the bedroom. That is the only gambling that I could swear that I saw. . . . I saw some fellows up there in the loft. That was not the same time I saw the fellows gambling in the room. I can not tell when it was that I was up in the loft after bottles. It was this year. I reckon it has been two or three months ago, or some-think like that. I do not know how many men were up in the loft when I was there. There were as many as ten or fifteen. There was a right smart crowd of them. . . . The men were down on the floor. I could hear the money rattling."

Charlie Maddox, among other things, testified that he had been living at Mart about six or seven years off and on. Knew appellant and had known him some six or seven years. That he had had business relations with him and he and appellant were good friends. "We have been partners in things. There were a lot of things that we were partners in. I know where his place of business has been for two years or more. I have been in that place. I never did anything for him, connected with him, with reference to that building, or anything that took place in that building. I have been up there with him. I have played dominoes up there with him, and drank. I never played anything else up there with him. I have played cards in there. I have played in there two or three times during the past two years, maybe four times; I do not exactly know how many times. . . . Henry and I gambled together. He has given me money. We have divided the money that I made. I got money from him any time. He has given me money. Of course. I have got the money from him. I told the county attorney a little while ago that I got money from him with the understanding that I was to use the money to gamble up there in that attic, and we were to divide half and half the money I made in the game. That is what I said. Of course it is true. I have gotten money from him during the past two years with the understanding that I was to take the money and gamble, and if I made anything I was to give him half of it. That is true. I am not scared. Nobody has threatened to do any harm to me for telling the truth. Henry has not threatened to do any harm to me. Nobody at all has threatened to do any harm to me. We were staying upstairs there at the place. We were playing on the bed in the second story. Once is all that I have played on the second floor during the past two years with money that I got from Henry, to divide with him half of what I made. I would gamble at different places there at other times with his money. I would gamble at different places in town, down on the creek, with his money. I never did use any of his money in the loft, or ceiling above the second story of that building. I have gambled up there two times during the past two years. Henry Robertson was there when people were at his place of business. He saw me play. He did not see me when I was playing with his money. I was up there playing one Saturday in May of this year, with some other negroes. Henry Robertson was in there. The boys gave him fifty cents, and he went and got three bottles of beer. I know what a bottle of beer costs. It costs a dime at some places, and fifteen cents at other places. Henry did not give any of that money back of the fifty cents for the three bottles of beer. I was up there along about the second day of September, 1911, just about a week before I made this statement. There was not a house full of negroes there when I was there. I do not remember seeing a house full. Henry was up there. I saw him. When I won with Henry's money I gave him half. When I lost, I lost half. That is the way we were partners. We were not in business together. I have seen fellows give Henry fifty cents to get some beer with. It was up in the loft and he would go and get the beer and bring it back to the loft."

It was shown that the officers of Mart, shortly before the indictment in this case, raided said attic where gambling was carried on. They and appellant claimed that he had the officers to do so. In one of the raids they found appellant there and arrested him and a large number of other negroes, prosecuted them for gaming; many of them plead guilty, and among them appellant himself, although he denied in this trial, his guilt, claiming that he plead guilty because it was cheaper to plead guilty than it was to fight his case. In the other raid it was shown that there were a large number of negroes up in this attic gambling and that a good many of them escaped by jumping out of windows.

Appellant himself testified and, among other things, that he had some roomers who went up in that attic, but they said they were not playing anything except dominoes. He claims he told them not to gamble and that if they did he would get the officers after them. "Maybe thirty-five or forty or fifty negroes, or maybe more, would come there to my place sometimes on Saturday. They would come there and go up there and get rooms, and stay down and drink, you know." He testified he knew said Fikes, the witness mentioned above. "He caught his negroes up there (in the attic) and got hot at me about it. If the negroes had listened to me, they would not have gambled at all." He denied that he would engage in any games up in this attic, and denied that he had given permission to anybody to gamble either on the second floor or in the attic, and claimed, on cross-examination, that he never did go up in the attic himself. Then he said, "I have been up there. Some roomers were kicking about the fuss they were making. They were disturbing the roomers. I do not remember Charlie (the witness who swore he was a partner of appellant) ever playing up there." He denied that he had played any and denied that he had any partnership in the gambling business with him. "I have been up there in the attic and stopped them. The ones that were up there were strangers. I knew some few of them. I think this boy Cliff was up there. I have stopped people up there within the last two years. I stopped a fellow by the name of Jim and a fellow by the name of John Jones. They were out there in the country picking cotton. That was in May some time. I have gone up there several times and stopped them. I would be lying down asleep and I had nothing else to do with them. Some of the ones that I stopped from gambling up there were that negro Jim and Cliff Johnson, and a fellow by the name of Jess Jones. I went up there once or twice to stop them. I do not know whether it was the same fellows each time or not. I told them that if they did not stop, I would go get the officers. Sometimes those negroes would get out and sometimes they would not. I would tell them that if they did not get out, I would go tell the officers to get them out." Again he testified: "I have gone up there and stopped them from gambling several times." Again, "some fellows called me to the steps one time and gave me fifty cents and told me to get them three bottles of beer. I did so and got a drink out of it. They were playing dominoes."

Our Supreme Court, in Anderson v. Stockdale, 62 Tex. 61, in defining "control," says: "The usual and ordinary signification of the word ``control' is the same as the word ``manage,' which is to have control over the particular matter, to check, to restrain, to govern with reference thereto."

In Webster's Dictionary it is defined to be, "to exercise restraining or governing influence over; to check; to counteract; to restrain; to regulate; to govern; to overpower." And as synonyms thereof he gives, "to restrain; rule; govern; manage; guide; regulate; hinder; direct, check; curb; counteract; subdue." The Century Dictionary gives substantially the same definition thereto.

7 A. E. Ency. of Low (2 Ed.), 457, says: "Control means to check, restrain, govern, dominate, direct, regulate; have under command, to hold in restraint, or check subject to authority," citing many cases in support.

In 9 Cyc., 811, it is defined: "To restrain; to check; to regulate; to direct; to govern; to keep under check; to hold in restraint or check; to dominate; to rule and direct; to counteract; to exercise a directing, restraining or governing influence over; to govern with reference thereto; to subject to authority; to have under command and authority or to have authority over the particular matter," citing many authorities in support.

In Alexander v. Commonwealth, 12 Ky. L. Rep., 470, it is held: "One may be guilty of suffering gaming on premises ``in his occupation or under his control,' within the meaning of the statute, though he was neither the owner, nor renter of the premises. It is sufficient that he was in control during a single game and suffered it to go on; and he will not be heard to say that his possession was unlawful." Wakefield v. Commonwealth, 7 Ky. L. Rep., 295; O'Brien v. Commonwealth, id., 220.

This court, in the recent well considered case of Davis v. State, 151 S.W. Rep., 313, has not only sustained an indictment and conviction substantially, if not almost literally, the same as the indictment in this case, but also therein in effect held, that a party did not have to be the owner, renter or tenant of a house to be in control thereof and that a person who merely stayed at the residence of others during their absence, without in any way being a tenant of the owner, was in control thereof in contemplation of this statute and expressly held: "It would be immaterial whether he (appellant) was in possession by permission or had taken possession during Mr. Fich's (the owner) absence, believing it to be agreeable with the owner. If one should in any manner, while the family was absent, take possession of a house and permit gambling to be engaged in by all those who came to the house while he was in control of the house, and when it was shown that on five occasions during the time he permitted gambling to be carried on in the house, it would be an offense against the law." This Davis case we regard as directly in point and applicable to this case. See also De Los Santos v. State,65 Tex. Crim. 518, 146 S.W. Rep., 919; Humphreys v. State,34 Tex. Crim. 434.

We think it is clear and beyond question from the evidence in this case that in contemplation of our statute and the absolute and unquestioned control that appellant had of the door on the ground floor of said building and the stairway leading up to the second floor and the room on said floor, through which and from which the only access to said attic was had by a ladder therefrom into the attic; and that appellant knew that from day to day and week to week and month to month large numbers of negroes, both day and night, numbering as many as fifty to seventy-five frequently, congregated in said attic, reaching it only and solely through his door, his stairway, his room and a ladder therein and that he was frequently in said attic, saw and knew gambling was going on therein almost constantly; that he himself on many occasions was in charge of the games, banking them and himself engaging in the games and that he had a partner to whom he furnished money whom he knew was gambling in said attic and divided the gains and losses in the games with him; that he waited on the parties up there and at their instance brought and delivered to them intoxicating liquor, — beer, — and that he, from time to time, according to his own testimony, broke up and stopped the gambling in said attic, and that altogether the jury were not only authorized to find that he was in control of said attic, although he did not have it leased from the owner, but that no other conclusion could have reasonably been reached from the testimony than that he was in control thereof.

As we have shown above, in the first part of this opinion, we think it clear that the proper construction of said statute does not require that the indictment shall allege and the proof show that appellant kept the said property for the purpose of being used as a gambling house. In other words, that in order to show that he was guilty of permitting gaming to be carried on in said attic it was not necessary to allege or prove that he, or anyone else, kept that place as a gambling house, or that it was kept for the purpose of using it as a gambling house. It is true the statute makes anyone who keeps it for the purpose of being used as a gambling place guilty of an offense. That by no means would prevent the Legislature from passing, or show that this statute itself, did not also provide, as we think it clearly does, that anyone who knowingly permitted the property to be used would likewise be guilty. The words "so used" in our opinion do not relate back to and make it necessary in order to commit the offense of knowingly permitting the property to be used for gaming, that it shall also be kept as a gambling house, but applies to the other portion of the statute which makes it an offense for anyone to keep for the purpose of being used, property or premises, as a place to gamble. Keeping it for that purpose is a separate and distinct offense made so by the statute. Knowingly permitting it to be used for gaming, although not kept as and for a gambling house, is also an offense under this statute. "So used" does not mean and can not properly be construed to relate back and include "kept." Property being used for gaming need not necessarily be kept for that purpose.

In our opinion each of the counts in the indictment in this case correctly and properly charged a violation of said statute. That appellant's motion to quash them was properly overruled; that his objections to the charge of the court, following, in submitting the questions of a violation of the law as charged by each count of said indictment, are not well taken, and that the proof was amply sufficient to show that appellant was in control of the attic in contemplation of said statute and that he knowingly permitted gaming to be practically constantly carried on there, and the evidence is amply sufficient to in every way sustain the conviction. The judgment is, therefore, affirmed.

Affirmed.

ON REHEARING. May 7, 1913.