Harvey v. State

The conviction is for keeping a gaming house; punishment assessed at confinement in the penitentiary for a period of two years.

The count in the indictment upon which the conviction rests reads thus: ". . . did then and there unlawfully keep and was then and there interested in keeping a building and room there situate for the purpose of being used as a place to bet and wager and gamble with cards then and there played, and did then and there knowingly permit said property and premises to be used as a place where people resorted to gamble, bet and wager upon games then and there played with cards."

It was assailed as duplicitous, the point being made that it charged both a felony and a misdemeanor in the same count, the felony consisting in the allegation that "the house was kept for the purpose of being used as a place to bet and wager and gamble with cards then and there played." This part of the indictment is sufficient to charge a felony under Article 559 of the Penal Code. (See also Fridge v. State, 90 Tex.Crim. Rep.). It is urged that the remaining part of said indictment charging that he did: "Then and there knowingly permit said property and premises to be used as a place where people resorted to gamble, bet and wager upon games then and there played with cards" charged a misdemeanor.

The last-mentioned part of the indictment was not submitted to the jury. The conviction rests upon the submission of the part first mentioned. However, the second part of it does not, `in our opinion, charge a misdemeanor. To charge a misdemeanor, it would be necessary that it allege that the house was a public place or appurtenant to a public place. (See Penal Code, Art. 572; Francis v. State, 90 Tex.Crim. Rep..)

Standing alone it may not charge a felony because it is not averred in that paragraph that the appellant permitted said property to be kept for the purpose of being used as a placewhere people resorted to gamble. The first part of the indictment being sufficient to charge a felony, the second part being incomplete for that purpose, could, under the well-established rule, be rejected as surplusage. Nicholas v. State, 23 Texas Crim. App., 326; Smith v. State, 81 Tex.Crim. Rep.; Todd v. State, 89 Tex.Crim. Rep..

The evidence is to the effect that the appellant conducted a confectionary store and that in a room connected therewith in the back end of the same building gambling was conducted. The gambling was done with cards; appellant banked the games and took part of the wagers to compensate him for the use of the premises. He sold chips which were used in the games and cashed the chips at the end of the games. He had an assistant, who, at times, attended to banking the games. These transactions occurred a number of times. There was evidence that the room was equipped for the purpose of gambling and was habitually used for that purpose with the knowledge and consent of the appellant, and that he participated in the games. Some of the evidence was controverted, but such was the State's case.

The indictment embraces but one offense. The transactions set out being such as were proved by the same evidence, there was no error in refusing to require an election by the State as to which transaction would be relied upon. Appellant's rights in this respect were sufficiently protected by the action of the court in eliminating from the consideration of the jury the second phase of the indictment. See Branch's Ann. Tex. Penal Code, Sec. 444; Crosslin v. State, 90 Tex.Crim. Rep..

It is urged that Article 559 of the Penal Code is so in conflict with the Acts of the Thirty-first Leg., p. 111, defining and punishing vagrancy as to operate an implied repeal.

The point presented was necessarily decided adversely to the appellant's contention when the statute under consideration was upheld in the case of Fridge v. State, 90 Tex.Crim. Rep.. Among the persons designated as vagrants is "every keeper of a house of gambling or gaming." Penal Code, Article 634. It was decided by this court that the enactment of this vagrancy statute did not repeal the gambling statute, Article 559, supra. See Parshall v. State, 138 S.W. Rep., 759. The decision in that case was not unanimous, but the subject has since been discussed in substance in the cases of Ex parte Oates, 91 Tex. Crim. 79. In these cases it was held that the vagrancy law refers to astatus and not to individual transactions. The particular matter there involved related to violation of the law against the sale of intoxicating liquors. The principle upon which the relator in the Oates cases relied is identical with that relied on by the appellant; and the Oates cases, supra, must be regarded as affirming the rule applied in the case of Parshall v. State,supra.

All bills of exceptions found in the record have been carefully examined. In none of them have we found any matter that would warrant a reversal of the judgment.

It is therefore affirmed.

Affirmed.

ON REHEARING. November 22, 1922.