
    H. W. Sublett v. The State.
    An indictment for playing cards for money, .i-e., at a house for retailing spirituous liquors need not contain any allegation for tito purpose of identifying tho particular place in which the placing is charged to have been done. (Noto 9.)
    Appeal from Travis. This was an indictment for playing cards in a house for reddling spirituous liquors in the county of Travis. Tlie charging part of tilt' indict nieut was as follows : •' In a certain, house for the retailing of spirituous “liquors I lien and there situate, did then and there play at a certain game at “cards railed polrer, on which said game then and there played as aforesaid “ money was then and there bet, contrary to the statute,” &c.. &e. The defendant. excepted to the indictment on the ground that the offense was not sufficiently identified. Tlie exception wasAverruled and tlie defendant was convicted,
    
      H. IT. Snblett, for appellant.
    It is believed by the appellant that inasmuch as card-pi,-lying is not generally prohibited, but is only prohibited at certain places, tin- place at which the playing is charged to have been done ought to be described. It is of tlie essence of tlie offense; and besides this, there is no other way of identifying the acts constituting the precise offense with which tlie party is charged. If the indictment had charged a sufficient number of other fuels and circumstances to have identified with reasonable certainty the particular offense the defendant was required to answer, possibly a description of the. place might have been omitted. But upon reflection it will he seen that in this particular character of offenses there is no other convenient mode of identifying an indictable transaction than by describing the place at which it was done.'” Hence, then, it must follow that a description of the place at which the, playing was done is necessary.
    The law points out tlie mode of describing and identifying any and every offense. An assault and battery is identified by the person on whom it is committed ; rape, likewise; larceny, by a description of the goods stolen and the name of i.he owner. And so of every offense known to the law; there is always some allegation in a good indictment for any offense apprising the defendant with reasonable certainty of tlie particular acts constituting the offense. In this ease it was not done. In the ease, of Click v. The State, (3 Tex. R., 2S2,). Justice !Yheeler quotes from 7 Oaneli, 3S9, this language : “The rule, it has “been said, that a man shall not be charged with one crime and convicted of “ another may sometimes cover real guilt, but its observance is essential to the “ preservation of innocence.” In tlie case of Bareli v. Tlie Republic, (1 Tex. R., BOS,) .Justice Wheeler uses this language : “But it is not sufficient to aver ■“generally that the defendant did vend spirituous liquors in a quantity of a “quart aiid over, without stating at what house or establishment or to whom “ tlie vending took place, or some\>ther fact tending to identify the transaction; “ and (hough the objection may not have been available in arrest of judgment, “yet it was fatal to the indictment on demurrer.”
    
      Allomen General, fm- appellee.
    Tho precise question here presented — the degree of’certainty in "the description of the place of playing required in an indictment for “playing at cards in a house for tho retail of spirituous liquors,” &e. — has been decided in favor of the State in the case of Pryor v. Tlie State ■of Texas. (1 Tex. II., 383.) •
    
      Note 9. — Cochran v. The State, 20 T., 678.
   Lipscomb, J.

The statute under which the indie!ment was found is an follows, i.e.: That if any person shall play at any (avern, inn, store-house, house for retailing spirituous liquors, or any other public house, or in any street, or highway, or in any other public place, or any out-house where people resort, at any game or games with cards upon which .money or property or tito representative of either shall he bet, such person or persons so playing ¡-hall he deemed guilty of a misdemeanor, and on conviction thereof by indictment shall be fined in a sum not less than ten nor more than thirty-five, dollars.' (Hart. Dig., art. 1474.)

The question is not a new one, and we believe is fully answered in the ease of Pryor v. The State. (4 Tex. R., 383.) In that case, "in which the objection was that it was not proven who was the owner of the house and in the indictment the owner was named, the language of the court is, “ The most material “fact, and indeed all that was necessary to he averred, was the playing at a “public place, or at a house occupied for retailing- spirituous liquors. ’ It "could “ not be, important to allege, who owned the house-; suelian inquiry eonhl only “have been essential had filio owner or occupant been indicted for permit ling “playing- at cards in his house. In this indictment it is nothing- more than “surplusage; the indictment is good without it.” We believe the law was correctly ruled in the case cited, and we are therefore not at liberty to depart from it; and we believe therefore that the indictment in this case is good, and substantially follows the statute. The judgment is affirmed.

Judgment affirmed.  