
    SHERMAN v. STATE.
    (No. 7206.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.)
    Gaming <§=o97(4) — Testimony, of general reputation of house inadmissible.
    In a prosecution for permitting gambling in a house under defendant’s control, where the evidence showed that it was done at defendant’s private residence, testimony that the general reputation of the house was that it was commonly resorted to for gambling purposes was inadmissible.
    Appeal from Smith County Court; D. R. Pendleton, Judge.
    Wiley Sherman was convicted of permitting gaming in a house under Ms control, and he appeals.
    Reversed and remanded.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

It was charged against appellant that he permitted a game of cards on which betting was done to be played in a house under his control, said house being a public place in that it was a private residence occupied by a family which was commonly resorted to for the purpose of gambling. Conviction followed, and a fine of $75 was assessed.

Motion to quash the information was presented on the ground that it failed to allege and define a public place as required by the statute, and that a private residence occupied by a family commonly resorted to for the purpose of gambling was not a public place under the law. The court properly overruled the motion under authority of Stuart v. State (Tex. Cr. App.) 60 S. W. 554; Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208.

The evidence shows that the gambling was done at the private residence of Wiley Sherman. It was- sought to fix a public character to said private residence by proof that it was commonly resorted to for the purpose of gambling. Many witnesses were introduced who testified over objection that they knew the general reputation of said residence to be that it was commonly resorted to for gambling purposes. The very question involved here was discussed in the recent ease of Sam Warren v. State (No. 6935, opinion delivered February 7, 1923) 247 S. W. 564. Warren was charged with gambling at the private residence of Wiley Sherman, which was alleged to be a place commonly resorted to for the purpose of gambling. The same character of testimony to prove the latter allegation was resorted to there as in the instant ease, and was held inadmissible. Epr the reasons stated in that opinion, the admission of the same character of testimony in the instant case was erroneous and calls for a reversal.

The judgment is reversed, and the cause remanded. 
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