
    DEISHER v. STATE.
    (No. 6093.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.)
    1. Gaming <&wkey;98(6) — Evidence necessary for conviction for permitting use of premises for gambling stated.
    Under Pen. Code 1911, art. 559, making it a felony for one to rent or be interested in keeping premises or knowingly permit premises which he owns or which are under his control to be used in gaming, if the charge .is for permitting, the proof must show that accused was the owner of property or premises and had them under his control; that it was being used to bank or wager or gamble with cards, dice, or dominoes; or that it was used as a place to gamble or exhibit for the purpose of gaming a bank, etc.; or that it was being used as a place where people resorted to gamble, etc.; that the accused knew it was being so used, and knowingly permitted the use for that purpose.
    2. Gaming &wkey;>98(5) — Evidence necessary for conviction for renting' premises to be used in gambling stated.
    In prosecution under article 559, Pen. Code 1911, making it a felony to rent or be interested in the keeping, etc., of premises used for the purpose of gaming, if the charge is for renting, the proof must show that accused rented the premises for the purpose of being used as a place to bet or gamble with cards, dice, or dominoes or for the purpose of being used as a place in which to keep or exhibit for purpose of gaming a bank, table, alley, machine, etc., or for the purpose of being used as a place where people resorted to gamble or wager upon anything whatever.
    3. Criminal law &wkey;>178 — Defendant cannot be prosecuted on subsequent trial on a count abandoned.
    Where the second count in an indictment was abandoned, and the court submitted only the first count, defendant cannot, on a subsequent trial, be prosecuted on the abandoned count.
    4. Gaming &wkey;>92 — Count for renting must allege premises were appurtenant to a public place.
    A count failing to charge that the premises alleged to have been rented were “appurtenant to a public place” is insufficient under Pen. .Code 1911, art. 572.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    John Deisher was convicted of permitting the use of property under his control for gambling, and appeals.
    Reversed and dismissed.
    
      Grisham Bros., of Eastland, for appellant.
    O. M. Cureton, Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for knowingly permitting property under control of appellant to be used for gambling purposes. Punishment was assessed at two years’ confinement in the penitentiary.

The first count in the indictment under which appellant was convicted, and the only one submitted to the jury, omitting the formal parts, is as follows: '

Did “knowingly permit property and premises there situated,, and then and there under his control, the same being then and there not a private residence occupied by a family, to be used as a place to bet and wager and to 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 to gamble, bet, and wager upon games then and there played with cards.”

Under authority of the case of Jerry Francis (No. 5775) 233 S. W. 974, this day decided, this case must be reversed. It is not necessary to review the authorities, nor to discuss the reasons, because they have been fully set out by the court in the Francis opinion, in which we have held that article 572 (389) and article 559 (388b) are both in effect, and not in conflict. In so far as Robertson v. State, 70 Tex. Cr. R. 307, 159 S. W. 713, and Stevens v. State, 70 Tex. Cr. R. 565, 159 S. W. 505, hold contrary views, we disapprove the same, and reaffirm Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208.

Before a conviction for a felony under article 559 (388b)'Pen. Code 1911, can be sustained, if the charge be for “permitting,” the proof must show that accused was the owner of property or premises, or had the same under his control; that it was being used as a place to bet or wager, or to gamble with cards, dice, or dominoes; or that it was being used as a place in which to keep or exhibit for the purpose of gaming a bank, etc.; or that it was being used as a place where people resorted to gamble, etc:; that the accused knew it was being so used, and knowingly permitted it to be used for that purpose.

If the charge be for “renting,” the proof must show that accused rented to another certain premises, building, room, or place for the purpose of being used as a place to bet, or wager, or to gamble with cards, dice, or dominoes, or for the purpose of being used as a place in which to keep or exhibit for the purpose of gaming a bank, table, alley, machine, wheel or device, or, for the purpose of being used as a place where people resort to gamble, bet, or wager upon anything whatever.

It being necessary to make the proof as indicated, of course there must be proper allegations in the indictment to support it. It is not intended by the foregoing to suggest a form of indictment, but only to express our views in an effort to analyze and simplify the statute in question. The offenses defined in said article now being felonies, some particularity is required in drawing indictments that questions of duplicity may not arise, or that different offenses may not be embraced in one count.

The second count in the indictment, which was not submitted to the jury, perhaps charges an offense under article 559, according to the suggestions heretofore made in this opinion; but that count having been abandoned when the court submitted only the first count, the appellant cannot on a subsequent trial be prosecuted on the abandoned count. See Branch’s Anno. Pen. Code, § 628, p. 318, for collation of authorities. The first count fails to charge that the premises alleged to-have been rented were “appurtenances to a public place,” which seems to be necessary under article 572.

It therefore bécomes necessary to reverse-the judgment of the trial court, and order the prosecution dismissed under this indictment. 
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