
    No. 5843.
    W. H. Tucker, Jr. v. The State.
    1. Practice—"Vehue is a material issue in. a criminal case, and must be affirmatively proved.
    2. Playing- Cards ik a House for Retailing Liquor—Pact Case.— See the opinion in extenso for the substance of evidence held insufficient to support a conviction for playing cards' in a house for retailing spirituous liquor.
    Appeal from the County Court of Milam. Tried below before the Hon. E. Y. Terral, County Judge.
    The conviction was for playing cards in a house for retailing-spirituous liquor, and the penalty assessed was a fine of ten dollars.
    The opinion discloses the case.
    B. J. McCalla, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

This conviction is for playing cards at a house for retailing spirituous liquors. The judgment must be reversed because the venue is not proven.

J. H. Bicket, the only witness for the State, testified that on the night of the twenty-third of March, 1887, he saw the defendant, W. H. Tucker, H. E. Iglehart, Bud Robinson and W. W. Chambers playing cards in the back of Iglehart’s saloon. The parties were sitting around a low table or box. Witness looked through the keyhole at the front door, which is about seventy or eighty feet from the place where the parties were playing. He did not think he could be mistaken as to the identity of Tucker, he looked carefully.

Iglehart, Robinson and Chambers were at the saloon at the time stated by the witness, and played at the game of cards. They pleaded guilty, and Iglehart and Robinson were introduced as witnesses for defendant. They each admit their presence and participation' in the game at the time and place stated by Bicket, but they each swear most positively that Tucker was not present, that the fourth man was a Mr. Shinn. That, while Shinn is larger and taller than Tucker, they have the same shaped face—both red faced and both have long red moustaches and wore black hats.

Opinion delivered June 16, 1888.

Now, while we are satisfied that Mr. Bicket honestly believed that Tucker was one of the party engaged in the game of cards, yet it is very clear to us that he took Shinn for Tucker, and was honestly laboring under a mistake.

We believe the verdict against the weight of the evidence, the clear preponderance of the evidence; and, to reach this conclusion, it is not at all necessary to question the veracity of Mr. Bicket.

The judgment is reversed and the cause remanded.

Reversed and remanded.  