
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1912.)
    1. Gaming (§ 98*) — Sufficiency of Evidence.
    Evidence held to sustain a finding that defendant permitted a house under his control to be used as a resort for gambling.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §| 291-298; Dec. Dig. § 98.*]
    2. Gaming (§ 76*) — “Resort for Gambling.”
    Where a person opens a house under his control and permits persons to gather there, and gamble without invitation, it becomes a “resort for gambling.”
    [Ed. Note. — For other eases, see Gaming, Cent. Dig. §§ 202, 203; Dec. Dig. § 76.*
    For other definitions, see Words and Phrases, vol. 7, p. 6174.]
    3. Gaming (§ 76*) — Permitting Gambling on Property — What Constitutes the Offense.
    Where an unmarried man takes possession of a private house, by permission or otherwise, during the owner’s absence, and permits gambling therein, he is guilty of unlawfully permitting property under his control to be used as a resort for gambling.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 202, 203; Dec. Dig. § 76.*]
    4. Gaming (§ 76*) — Permitting Gambling on Property — What Constitutes Permission.
    The act of a person in engaging with others in gambling on premises under his control constituted permission to the others to gamble.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §| 202, 203; Dec. Dig. § 76.*]
    5. Criminal Law (§ S14*) — Instructions— Evidence.
    An instruction not called for by the evidence was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. |§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-19S5, 1987; Dec. Dig. § 814.*]
    6.Gaming (§ 94*) — Evidence—Issues.
    In a trial for permitting gambling on premises under defendant’s control, evidence that one night shortly before the grand jury met he requested that gambling stop did not present the issue that the gambling took place without his consent, where it appeared that he engaged in the games on all prior occasions.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 274-283;. Dec. Dig. § 94.*]
    7.Criminal Law (§ 717*) — Trial—Conduct of Counsei>-Discbetion.
    Whether the. state’s counsel shall be permitted to read cases and discuss law to the trial court is within the court’s sound discretion.
    [Ed. Note. — For other cases, Law, Cent. Dig. §,§ 1682-1687; 717.*] see Criminal Dec. Dig. §
    8.Criminal Law (§ 1169*) — Harmless Error — Admission of Evidence — Verdict.
    In a trial for permitting gambling, error, in permitting a witness to testify that he had never known defendant to work, and had frequently seen him in a pool hall., was harmless, where the jury assessed the minimum punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3088, 3137-3143; Dec. Dig. § 1169.*]
    9.Gaming (§§ 88, 89*) — Indictment—Sufficiency.
    An indictment for violating Pen. Code 1911, art. 559, by permitting property under the defendant’s control to be used as a resort for gambling, need not describe the premises, further than to say that it was a house under defendant’s control, or allege that the house was a public place, or name the games played therein.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 241-243, 244-248; Dec. Dig. §§»
    10.Indictment and Information (§§ 86, 87*) — Sufficiency.
    An indictment alleging that defendant, on or about a certain day, in C. county, in the state, did then and there, permit property under his control, to wit, one house in C., to be used as a resort for gambling sufficiently alleged the date, and that the offense was committed in O. county.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 230-243, 24dr-255; Dec. Dig. §§ 86, 87.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    M. H. Davis was convicted of permitting property under his control to be used as a gambling resort, and he appeals.
    Affirmed.
    Smith & Palmer, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under an indictment containing, several counts, and convicted under the fifth count, in which he was charged with unlawfully and knowingly permitting property which was under his control, a house situate in Comanche, to be used as a place for people to resort to bet and wager upon certain games played with dice and cards.

G. W. Fitch testified that his family consisted of himself and wife, and that defendant had been staying with him; that he and his wife took a trip to East Texas, and were absent some 13 or 14 days; that appellant continued to stay at his residence while he was absent. No one else stayed there, except appellant, while Mr. Fitch and his wife were absent. This would show that appellant was in control of the premises during that time, and the facts show that he was an unmarried man. During that time a number of witnesses testified that they went to this house and gambled there •on several occasions, some saying they played poker, and others testified they threw dice. It is-also shown that appellant played in part of the games and gambled with the others. Leslie Stewart testifies he played at this house, during the absence of Mr. Fitch, Thursday and Friday nights, and that six others were there and engaged in the games.

John Rhoads testifies he was there on occasions while Mr. Fitch was absent when gambling took place, twice in the daytime and three times at night, engaging in gambling, both with cards and dice; that he had gone to this place with appellant on one occasion, and on other occasions went with others. Frank Keeter testified he went to this house and gambled; that appellant was not there when he got there the first night, but came shortly afterwards; that on the second occasion appellant gambled with him and others; that on another occasion appellant and he gambled alone at the house — no one else being present. Joe Hulsey testified he had gambled at this house on two occasions, shooting craps on one occasion and playing cards on the other.

This testimony, we think, sufficiently shows that appellant permitted a house under his control to be used as a resort for gambling. He knew the gambling was taking place, engaged in the games a portion of the time, and it is shown that while Mr. Fitch and his wife were absent that on at least five occasions the witnesses gathered there and gambled with his knowledge. The boys say they just “went there” knowing that they could gamble there. When a person opens a house under his control and permits people to gather there and gamble without invitation (for he testifies he invited none of them), it becomes, in law, what is termed a common resort for gambling. The fact that it was the residence of Mr. Fitch does not alter the fact that as soon as Mr. Fitch left he permitted it to become a resort for the boys to gather and gamble, and the testimony would support the verdict.

There was no error in the court refusing to quash the indictment, on the ground that it did not negative the fact that it was a private residence, or allege that it was a private residence commonly resorted to for gambling. For the time being, it was not a private residence occupied by a family; but appellant, an unmarried man, was staying there by permission at least. It would be immaterial whether he was in possession by permission, or had taken possession during Mr. Fitch’s absence, believing that it would be agreeable with the owner. If one should in any manner, while the family was absent, take possession of a house and permit gambling to be engaged in by all those who came to the house while he was in control of the house, and when it was shown that on five occasions during this time he permitted gambling to be carried on in the house, it would be an offense against the law.

The court did not err in refusing the special charge requested by defendant, as it is shown that on more than one occasion he engaged in gambling with the others, and this, in law, would be construed to be permission for the others to gamble.

There was no evidence upon which to base the second charge requested by defendant; and it is never improper to refuse a charge not called for by the evidence. Neither was there any evidence suggesting that the persons who gambled “were guests at the defendant’s house, engaged in gaming for pleasure”; consequently the court did not err in refusing the special charge presenting this issue.

Special charges Nos. 4 and 5 were covered by the main charge of the court, in so far as they presented the law of the case. The fact that one night just before the grand jury met the appellant requested them to stop gambling on that occasion would not present the issue that the gambling took place without his consent, when it is shown that he engaged in the games with the others on all prior occasions.

The question of whether or not the state’s counsel shall be permitted to read ■cases and discuss the law to the court is one within the sound discretion of the court. The qualification of the bill shows that no ■authorities were read to the jury, but all were read to the court prior to the preparation of his charge. As thus qualified, the ■bill presents no error.

The defendant complains that a witness was permitted to testify that he had never known defendant to do any work, and had seen him in the pool hall a number of times. This testimony was inadmissible; ■but, inasmuch as the jury only gave appellant the minimum punishment fixed by law to this offense, it does not present such error as should cause a reversal of the ease.

The grounds of the motion in arrest of judgment should not have been sustained. Under article 559 of the Penal Code it was not necessary to describe the premises in which it was alleged the gaming took place, further than to say it was a house under his control. It was not necessary to allege that it was a house for retailing spirituous liquor, or other public place, under the article of the Code under which this prosecution was brought.

The indictment alleges that “on or about the 13th day of October, 1911, in the county of Comanche and state of Texas, appellant did then and there unlawfully and knowingly permit property which was under his control, to wit, a house situate in Comanche, to be used as a place for people to resort to bet and wager upon certain games played with cards and dice.” This sufficiently alleged the date, and that the offense was committed in Comanche county; and it was not necessary to name the games played with the dice and cards.

The judgment is affirmed.  