
    HARVEY v. STATE.
    (No. 7146.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1922.
    Rehearing Denied Nov. 22, 1922.)
    1. Indictment and information <&wkey;H9 — Part of indictment incomplete to charge felony disregarded as surplusage.
    Where the first part 'of an indictment, charging that the house was kept for the purpose of .being used as a place to gamble with cards, was sufficient to charge a felony, the second part, charging that defendant knowingly permitted the premises to be used as a place where people resorted to gamble on games with cards, being incomplete for charging a felony, could be rejected as surplusage.
    2. Indictment and information <&wkey;!25(28) — Indictment for gaming not duplicitous.
    Where an indictment charged in the first part a felony under Pen. Code 1911, art.' 559, in that the house was kept for use as a place to bet and gamble with cards there played, it was not duplicitous as charging a misdemeanor in the second part, that defendant knowingly permitted the premises to be used as a place where people resorted to gamble, etc., as to charge a misdemeanor it would be necessary that it allege that the house was a public place or appurtenant to one, article 572.
    3. Criminal lav/ <&wkey;678(l) — Refusing to require election not error.
    Where an indictment for gaming embraced but one offense, and the transactions set out in evidence being such as were proven by the same evidence, refusing to require an election by the state as to which transaction would be relied on was not error.
    4. Gaming &wkey;>63(3) — Act punishing vagrancy did not repeal act.
    Acts 31st Leg. (1909), c. 59, defining and punishing vagrancy, did not repeal Pen. Code 1911, art. 559, making it felony to keep or rent premises where people resorted to gamble.
    
      On Motion for Rehearing.
    5. Gaming <&wkey;98(5) — Evidence sufficient to support conviction of keeping gambling house.
    In a prosecution for keeping a house for the purpose of gambling with cards, evidence held sufficient to support a conviction.
    6. Criminal law <&wkey;>!09l(10) — Statement in bill of exceptions of objection for certain reason, not tantamount to showing of fact that statement is true.
    A statement in the bill of exceptions of an objection for a certain reason is not tantamount to a showing that such statement is true.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    J. H. Harvey was convicted of keeping a gaming house, and he appeals.
    Affirmed.
    A. E. & Carlos B. Masterson, of Angleton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is fox-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. Cr. R. 77, 233 S. W. 979. 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. Cr. R. 74, 233 S. W. 974.

Standing alone, it may not charge a felony because it is not averred in that paragraph that the appellant permitted said property to de kept for the purpose of ’beinij used, as a place where 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 surplus-age. Nicholas v. State, 23 Tex. App. 326, 5 S. W. 239; Smith v. State, 81 Tex. Cr. R. 534, 197 S. W. 589; Todd v. State, 89 Tex. Cr. R. 104, 229 S. W. 515.

The evidence is to the effect that the appellant conducted a confectionery 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, § 444; Crosslin v. State, 90 Tex. Cr. R. 469, 235 S. W. 905.

It is urged that, article 559 of the Penal Code is so in conflict with the Acts 31st Leg., p. Ill, 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. Cr. R. 76, 233 S. W. 979. Among the persons designated as vagrants is “every keeper of a house of gambling or gaming.” Penal Code, art. 634, subd. “k.” 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, 162 Tex. Cr. R. 177, 138 S. W. 759. The decision in that ease was not unanimous, but ■ the subject has since been discussed in substance in the cases of Ex parte Oates (Tex. Cr. App.) 238 S. W. 931; Id. (Tex. Cr. App.) 238 S. W. 932. In these cases it was held that the vagrancy law refers to a status and not to individual transactions. The particular matter there involved related vto violation of the law against the sale of intoxicating liquors. The principle upon which the relator in the Oates Oases 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.

On Motion for Rehearing.

LATTIMORE, J.

It is argued with much force in support of this motion that the evidence adduced failed to establish sufficiently the fact that appellant was either the keeper or one interested in the keeping of a building or room kept for the purpose of being used as a place to gamble with cards. We have again carefully gone through the facts, the result being that we are more thoroughly convinced of the correctness of our decision in upholding the verdict upon the testimony. It was in testimony beyond dispute apparently that the room in question was used as a place where people should meet and gamble. One witness testified that he gambled there almost constantly during one entire season, and that the game was being run for the profit of some person who had the take-off of every game. This witness testified that from every pot formed there was a chip taken out, evidently for the benefit of those who kept or were interested in keeping said place. He testified that either appellant or one other person whom he said was McGrew took out that which was for the benefit of the house.. When appellant was present he took it out, and when he was not present McGrew took it out. This witness said that when McGrew relieved appellant or appellant relieved McGrew, the one coming into the game would take the hand of the other and play it out. It was in testimony that appellant carried the key to said room, and when he was conducting the game, or when the game broke up, that he would lock up the room. His constant presence during the time charged in the indictment; his undeniable interest in the profits of the gaming transaction; his interest in the business being carried on in the front part of the house; his apparent control of the room in which the gambling was dpne, which was merely a small room cut off by a partition from the cold drink stand and confectionery carried on and run in the front part of the building — would seem to us to sufficiently make out the state’s case. The fact that the appellant and hjs witnesses denied the facts testified to by the state witnesses, and that their evidence, if believed, would bring the state’s case in doubt, would not justify us in concluding that the evidence introduced by the state was insufficient or untrue.

We adhere to our conclusion that article 559 of the Penal Code was not repealed by the statute making a vagrant of one who keeps a house for gaming. We do not think there is anything in the case of Ex parte Oates (Tex. Cr. App.) 238 S. W. 930, or Fridge v. State, 90 Tex. Cr. R. 76, 233 S. W. 979, which supports the proposition advanced by appellant in this regard.

Appellant again urges that we should have sustained his objection to the testimony of the witness Letz. Reference to the bill of exceptions shows that the question propounded to said witness was as follows:

“It is charged here in the indictment, Mr. Letz, that Mr. Harvey kept and was interested in keeping a building and room where people resort for the purpose of gambling. Did you ever gamble back there — play cards in Mr. Harvey’s place ? ”

The' objection stated in said bill was that there was no testimony that Mr. Harvey had any place, and that witness should not be permitted to testify (relative to gambling anywhere until the state had connected the defendant with the ownership or right of possession to the building or room referred to in the indictment. The objection being overruled, witness answered:

“Mr. Harvey was running a confectionery. I understood that was his place. I saw him in there frequently. Tes; there was a separate room set off in one corner in the back room of this building where people went to play cards. Sometimes we would have a game in there. Tes; I have played in there sometimes. Sometimes when he was playing in there he would bank the game and sometimes a fellow by the name of McGrew would bank it. When I say ‘he’ I mean the defendant Harvey.”

There is other testimony set out in this bill of exceptions. The bill of exceptions fails to measure up to the rules in such cases announced by this court frequently. A statement in the bill of an objection for a certain reason is not tantamount to a showing of the fact that such statement is true. A statement of an objection based on the fact that there was no testimony before the court showing that this appellant had any place, or was the owner or had some interest in the room described in the indictment, would not be tantamount to a showing in the bill of the fact that such statement was true, and would not be taken by this court to be true because of the fact of its appearing in such objection. There is nothing in the bill of exceptions in question further reflecting the fact that there was not abundant testimony before the court to show that appellant owned the room in question.

Our review of the record confirms us in our belief of the correctness of the original-disposition of this ease, and the motion for rehearing will be accordingly overruled. 
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