
    Peter Royal v. The State.
    An indictment for playing at a certain game with cards, on which money was bet, “in a certain “ house, for retailing spirituous liquors, known as,” &e.,is sufficient, without any more specific averment that the house was at the time used for the sale of spirituous liquors.
    Appeal from Walker. This was an indictment as follows: “That Peter “ Boyal, late of said county, yeoman, iu a certain house for retailing spirituous “liquors, in the town of Huntsville and county of Walker, known as Harvey “ Bandolph’s grocery, on tlie first day of March, in the year one thousand eight “ hundred and fifty-two, did play at a certain game of cards, upon which money “ was then and there bet, contrary, ’ ’ &c. Verdict of guilty. Motion in arrest, on the ground that the indictment did not sufficiently allege that the'house was used at tlie time for retailing spirituous liquors.
    
      Wiley Sf Baker, for appellant.
    The indictment in this case charges the playing to have been “iu a certain, house for retailing spirituous liquors',” adopting the precise words of tlie statute in describing the place. But it is submitted that following the language of the statute in this particular is not sufficient. A house may he for a purpose and yet not so used. Nothing can he taken by intendment in favor of an indictment. (Wliartou Am. Cr. L., 91.) We may readily suppose a state of facts which would admit every word in this indictment to he true, and yet no infraction of the law would occur. There lias been erected a “house for retailing spirituous liquors,” and after its completion, lint before tlie business is commenced, a game of cards, upon which moiipj' was bet, is therein played. Or the house may always heretofore have been used for retailing spirituous liquors, but unoccupied, or used for that purpose at tlie time tlie playing is alleged to have takeu place. In these eases the indictment is true and no violation of the law. Tlie indictment should charge that tlie house was, at tlie time, used or occupied as a house for that purpose. Or that it was a house in which spirituous liquors were then and there retailed.
    This view of what is a necessary averment in this indictment is sanctioned by this court in case of Pryor v. Tlie State, 4 Tex. B., 383, 385.
    Tlie G8th section of the act of 184S (Hart. Dig., art. 564) only has reference to tlie name of the game played, and dispenses with the averment and proof, this only; but in every other respect the indictment must conform to the .general rule for certainty. Iudictmeuts for offenses mala prohibita must- he strictly construed. (Wharton Am. Cr. Law, 92.)
    
      Attorney General, for appellee. (See preceding case.)
   Lipscomb, J.

The judgment in the two cases above'stated must he affirmed. 'The questions of law presented in them were settled in the cases of Cole v. The State and The State v. Ake, at Austin, the last term.

Judgment affirmed.  