
    [No. 3188.]
    Robert Fossett v. The State.
    Playing Cards in a Public Place.—Indictment, to charge the offense of playing cards in a public place, must allege the facts which constitute the place of playing a public place, unless the place be one specifically enumerated in the Penal Code. Livery stables are not so enumerated, and it does not suffice to aver that the livery stable was a public place, without alleging facts which constitute it such a place.
    Appeal from the County Court of Bosque. Tried below before the Hon. E. G-. Childress, County Judge.
    The conviction was for playing cards in a public place. A fine of ten dollars was the punishment imposed.
    Ho brief for the appellant has reached the Eeporters.'
    
      J. H. Burts, Assistant Attorney General, for the State.'
   Willson, Judge.

The indictment upon which this conviction was had charges that the defendant played cards “in a certain livery stable, in the loft of said livery stable, then and there being a part of said livery stable, overhead and above the stalls of said stable, to-wit, in the town of -Meridian, and commonly known as Whitworth stable, or red stable, the said livery stable, and the said loft thereof, then and there being a public place.”

In Jackson v. The State, decided by us at the present term, we held a similar indictment insufficient because it failed to allege the facts which constituted the place of the playing a public placej the said place not being one of those specifically named in the statute. (Penal Code, Art. 409.) A “livery stable,” nor the loft thereof, not being named in the statute, it was essential that the indictment should have alleged the facts which constituted the same a public place. (State v. Fuller, 31 Texas, 559; Elsberry v. The State, 41 Texas, 158; Jackson v. The State, ante, p. 373.)

Defendant’s motion in arrest of judgment, because of the above stated defect in the indictment, should have been sustained.

Because the indictment is substantially defective, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered June 4, 1884.  