
    Shihagan v. The State.
    The term “public” may be applied to a house either on account of the proprietorship, as a court-house, which belongs to the county, or the purposes for which it is used, as a tavern, storehouse, &c. The statute against gaming appears to have had especially in view houses of the latter class.
    whether any specified house is public, within the meaning and intention of the statute, is a question of law; but whether a place be public, will be, in general, a question of fact.
    An indictment for gaming, which described the place as “a room in the eourt-houso, the wud court-house being a public place,” was held bad in arrest of judgment, on the ground that there was no averment that the room was public.
    Appeal from Walker. The appellant was indicted and convicted of playing at cards under article 533 of the Digest. The indictment charged the offense to have been committed “in a room in the eourt-house, the said court-house “being a public place.” There was a motion to quash the indictment, a motion for a new trial, and a motion in arrest of judgment, which, in their order, were considered and overruled. The proof was that the defendant had rented the room in which the playing took place from the County Court, and that he used it as a tailor’s shop iu the day time and a sleeping- room at night. The upper or court-room was a public place, hut the witnesses testified that they considered the room occupied by the defendant as a private room.
    
      Theodore Shihagan, appellant.
    The errors assigned are the overriding the motion to quash, for new trial, and in arrest of judgment. The indictment is clearly defective; it does not aver that the room is a public place where the playing is alleged to have occurred, nor is it alleged that the playing took place in any house or other place specifically prohibited by the statute. (2 vol. Tex. L., 230, see. 07.) And the evidence clearly shows that the room iu which the playing-occurred was not a public place within the meaning of the statute, if tlie indictment had even averred it. All the witnesses concur in this. Under a similar statute in the State of Alabama the following decision was made: “Where a physician and'a few friends, present by invitation, “played cards or dice at night, with closed doors, in his office whore he ex“hibited his medicines, received professional calls at all times, and being un- “ married, ate and slept, it was held that the office was not a public place within “ the statute of Alabama against gaming.” (Clarke v. the State, 12 Ala., 492, Sup. Aikin. Ala. Dig., 239, sec. 8; U. S. Dig. for 1849, 257.) In this case the evidence is equally as strong or stronger than in the Alabama case, and it is submitted that it would be'diividious to make a distinction between a tailor’s and a doctor’s shop in point of publicity, if no principle requires it. It is therefore respectfully submitted that the judgment should be reversed and cause dismissed.
    
      B. C. Franklin, also, for appellant.
    
      Attorney General, for appellee.
   Wheeler, J.

The term .“public” may be applied to a house either on account of tlie proprietorship, as a court house which belongs to the county, or the purposes for which it is used, as a tavern, storehouse, house for retailing spirituous liquors, &c. The statute appeal’s to have had especially in view houses of- tlie latter class.. Whether any specified house is public, within the meaning and intention of the statute, is a question of law; but whether a place be public will be, in general, a question of fact. Because a court house is public it does not necessarily follow that every room in it is so. Where, as in this case, the County Court have rented a room to an individual, that room may, doubtless, be used as a private dwelling. It would seem, therefore, that it was not sufficient to aver that the court house was a public place; but the averment should have been that the room in which tlie defendant played was so. The house may have been public, in a certain sense, and the room private. We therefore think tlie indictment insufficient in that it did not contain the averment that the room was public. But if the indictment were sufficient, the proof appears scarcely to have warranted the finding of the jury upon the question of fact. It is, however-, unnecessary to determine that question. The objection to the sufficiency of the indictment was well taken by motion in arrest of judgment; the court, we think, erred in overruling the motion, and the judgment is therefore reversed.

Beversed and remanded.  