
    JANUARY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    1. Drunkards (§ 10) — Criminal Offenses —Statutes—Construction.
    Pen. Code 1911, art. 204, making it a misdemeanor for any person who shall get drunk or be found in a state of intoxication in any public place, applies to all persons found drunk in a public place, and is not limited to public officers.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 10, 11; Dee. Dig. § 10.]
    2. Drunkards (§ 11) — Criminal Offenses —Information—Sufficiency.
    An information, alleging that accused did unlawfully, by the voluntary and immoderate use of liquor, get drunk, and was found in a state of intoxication in a designated schoolhouse, where people were then assembled for religious purposes, states an offense punishable by Pen. Code 1911, art. 204.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 12-18; Dec. Dig. § 11.]
    3. Criminal Law (§ 29) — Offenses—Election by State.
    Where an act constitutes different offenses, the state may elect the offense for which the offender will be prosecuted.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 29.]
    4. Criminal Law (§ 173) — Former Jeopardy.
    Accused may be prosecuted in the county court for a misdemeanor, though a complaint had been filed against him in a justice court for the same offense, where he had not been tried thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 289; Dec. Dig. § 173.]
    5. Drunkards (§ 11) — Criminal Offenses —Evidence—Admissibility.
    On- a trial of accused for being drunk in a public place, the fact. that some one had vomited at the place, and that a greasy spot was on the floor where one had vomited, was admissible.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 12-18; Dec. Dig. § 11.]
    6. Criminal Law (§ 1037) — Improper Remarks of Counsel — Review.
    A conviction for a misdemeanor will not be reversed for improper remarks of the state’s attorney, unless accused objected and asked written charges thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1037.]
    7. Drunkards (§ 11) — Drunkenness in a
    Public Place — Instructions.
    The court, on a trial of accused for being drunk in a public place, must define, in its instructions, a public place, and leave the jury to find whether the alleged place was a public place.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 12-18; Dec. Dig. § 11.]
    8. Drunkards (§ 10) — Drunkenness in “Public Place.”
    A schoolhouse, where people are assembled for religious worship, is a “public place,” within Pen. Code 1911, art. 204, punishing any person found in a state of intoxication in any public place.
    [Ed. Note. — For other cases, see Drunkards, Cent. Dig. §§ 10, 11; Dec. Dig. § 10.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5806-5812; vol. 8, p. 7773.]
    Appeal from Yan Zandt County Court; C. L. Stanford, Judge.
    Porter January was convicted of crime, and he appeals.
    Affirmed.
    Reese & Hubbard, of Canton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in D«o. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

On September 19, 1911, the defendant was convicted, in the county court of Yan Zandt pounty, Tex., under an information for the voluntary and immoderate use of spirituous, vinous, and malt liquors, and that he did then and there unlawfully get drunk, and was then and there found in a state of intoxication in a certain public place, to wit, Whitter schoolhouse, where people were there assembled for the purpose of religious worship. His punishment was assessed at a fine of $1.

The Assistant Attorney General has so fully covered every issue in the case we have adopted his brief as our opinion in the case:

“The defendant moved to quash the information for the following reasons, to wit: ‘(1) Because the same charges no offense against the laws of this state. (2) Because the same is vague, uncertain, and indefinite. (3) Because, if the same charges any offense at all, it is the offense of disturbing religious worship, and not that of drunkenness in a public place. (4) Because a conviction under said complaint and information would not be a bar to a prosecution for the disturbance of religious worship; said complaint and information charging the offense to have been committed at Whitter schoolhouse, where people had assembled for the purpose of religious worship. (5) Because said complaint is ambiguous, and does not apprise this defendant of what offense he is charged, and does not charge any specific offense against the laws of the state, in this: That it attempts to charge two separate and distinct offenses, the conviction in one of which would not be a bar for the subsequent prosecution for the other. (6) Because the court’s docket charges this defendant with the offense of disturbing religious worship at the time and place charged in said complaint and information, and for which he has once been arraigned in this court, while said complaint and information charges, or attempts to charge, at said time and place, the offense of drunkenness in a public place, to wit, at Whitter schoolhouse, where people had assembled for the purpose of religious worship. (7) Because this defendant was arraigned on a former complaint in a court of competent jurisdiction, to wit, justice court, precinct No. 1, Van Zandt county, and a motion to quash was sustained and the defendant discharged, and, the state’s attorney refusing to refile in said court, he now pleads said judgment of said court in bar of this prosecution. Wherefore defendant prays the court to quash said complaint and information filed herein, and that he be discharged, and of this he prays judgment of the court.’
“That the legal issues may be thoroughly understood, the following observations will be made. Article 204 of the Revised Penal Code is as follows: ‘Any person who shall get drunk or be found in a state of intoxication in any public place shall be deemed guilty of a misdemeanor, and, on conviction before a court of competent jurisdiction, shall be fined in a sum of not more than $100.00 for each and every such offense.’ In various points (not to be divisible from the rest of his brief), appellant claims that this law applies only to officers, and that a public place is only some place that is specially defined as a public place. The words of the statute are so clear and peremptory that it applies, not only to public officers, but to anybody, especially when we consider, in article 204, ‘any persons who shall get drunk.’ The act prohibiting public drunkenness in this state was passed February 21, 1879. The act referring to public officers was passed on July 31, 1876, pp. 76, 77. The former act made it an offense for any person to get drunk in a public place; while the act of 1876 applied to officers only. From the dates of these acts alone, it is apparent that the legislative intent, in 1879, was to extend the law of July 31, 1876. This law of 1876 applied only to drunkenness by an officer; but the act of February 21, 1879, extended the crime to any person who might commit the offense.
“One of the burdens of contention of the appellant in this case is that the information is insufficient, either as an information for drunkenness in a public place, or for the offense of disturbing religious worship, in that the same fails to allege that said congregation, as assembled, was conducting themselves in an orderly manner. When this case was submitted to the jury, the court charged that the defendant could be convicted only ‘for drunkenness in a public place.’ The question of disturbing religious worship was not am, issue in the ease. Had it been, it would have been necessary to have alleged more than was alleged in this information, in order to charge the offense. The peculiar words of the information are as follows: The defendant ‘did unlawfully, by the voluntary and immoderate use of spirituous, vinous, and malt liquors, unlawfully get drunk, and was then and there found in a state of intoxication in a certain public place, to wit, Whitter schoolhouse, where people were then and there assembled for the purpose of religious worship.’ That Whitter schoolhouse was a public place would not be apparent, were it not for the allegation that people were then and there assembled. The words ‘for the purpose of religious worship’ might be a matter of description — descriptio rei — and therefore, as an allegation, might be required to be proven, possibly, under the rule of strict proof; but the gravamen of this offense is drunkenness in a public place, where it will be a nuisance to mankind — that is, to an assemblage of people. It will be freely confessed that if the information were to be regarded as one for disturbance of religious worship that it would not be sufficient; but a place of religious worship, resorted to by people in general, is a public place, and the mere fact that the offense of the defendant was one against religious worship would not at all interfere with a prosecution for the offense of drunkenness at such place, if in fact he was at such place drunk, when /people had assembled there. The fact that he might be prosecuted for a graver offense than mere drunkenness in a public place cuts no figure, for the reasons that many times the same acts constitute many different offenses; and it is within the power and privilege of the state to elect upon which it will indict for. Wharton’s Criminal Pleading and Practice (9th Ed.) §| 291 to 294, 464 to 467.
“Bill of exceptions No. 1 is to the refusal of the court ‘to permit Walter Wilhite, justice of the peace of precinct No. 1, of Van Zandt county, Texas, to testify that, after he had sustained a motion to quash the complaint filed in a companion case in his court, the county attorney left the courtroom, taking with him the papers in this case, remarking “that the court would not know a good motion from a bad one if he was to see it.” ’ It is immaterial in this case as to what was done by the court in another case; and he (defendant) could be prosecuted in the county court if he had not been tried in the justice court.
“Bill of exceptions No. 2 complains that, on cross-examination of Miss Nobie* Fails, a witness for the defendant, she was asked if she did not know, as a matter of fact, that the defendant was drunk and puking on the night and place in question, and if she did not afterwards see a greasy spot where he had puked on the floor, and the witness answered that she saw a greasy spot, but did not know who made it, to which question and answer the defendant excepted. The fact that somebody had vomited at the schoolhouse certainly was admissible. The fact that a greasy spot remained upon the floor afterwards was certainly admissible for the purpose of showing that the vomiting had taken place; and under the bill as prepared by the court no error is apparent.
“Bill of exceptions No. 3 complains of the failure of the court to give a certain special charge. It was not applicable to the facts in the case. It is sufficient to say that the information charges and the evidence proves that the defendant ‘did unlawfully, by the voluntary and immoderate use of spirituous, vinous, and malt liquors, unlawfully get drunk, and was then and there found in a state of intoxication in a certain public place, to wit, at Whitter schoolhouse, where people were then and there assembled for the purpose of religious worship,’ if the evidence offered in behalf of the state is to be given credence.
“There are a number of assigned errors in bills of exception, and also alleged as grounds in motion for new trial, which we do not deem it necessary to discuss because of their immateriality. A differentiation is sought to be made between cases of disturbance of the peace (public or private) as to whether the offense constituted a disturbance of religious worship or drunkenness in a public place. The evidence would support the allegation in the complaint and information.
“Bill of exceptions No. 4 seems to refer to some ruling of the court passing on the fact that defendant was not an officer, and that the definition, as requested by defendant, under the law, applies only to officers. As hereinbefore shown, the law applies to citizens, as well as officers, who get drunk in a irublie place.
“Bill of exceptions No. 5 complains of improper remarks of the state’s attorney. It will be seen by the court’s qualification of the bill ‘that when said language was used the court at once instructed the jury not to consider same, and the county attorney apologized to the jury for using the same, and told them to look to the evidence and not his statement.’ The words, as used, were not dissimilar in character or effect to those that were used in the cases of Pemberton v. State [55 Tex. Cr. R. 464), 117 S. W. 837; Howard v. State [53 Tex. Cr. R. 378], 111 S. W. 1038. Unless defendant’s counsel objects and asks written charges on improper remarks, the case will not be reversed. Leech v. State, 139 S. W. 1148; Reynolds v. State, 139 S. W. 977, and cases there cited. Stewart v. State, 38 Tex. Cr. R. 627 [44 S. W. 505], and Clark v. State [53 Tex. Cr. R. 529], 111 S. W. 659, are similar cases to this one; and such remarks were held not to be cause for reversal. It must be remembered constantly, in the consideration of this case, that the charge is one of drunkenness in a public place, and is not for disturbance of peace or religious worship, and when we do so it will be seen that the matters complained of in the motion for new trial present no error.
“Bill of exceptions No. 6 complains of the refusal of special charge No. 2, requested by defendant, that Whitter schoolhouse was not a public place per se. The court in its general charge instructed what a public place was, and as there given it is sufficient. It conforms with the definition as given in Murchison v. State, 24 Tex. App. 8 [5 S. W. 508]; and in Elsberry v. State, 41 Tex. 158, it is held that what is a public place is a question for the jury under instructions of the court; and the jury would be authorized to find that this was a public place on the occasion referred to.
“Bill of exceptions No. 7 is based upon the idea that a place is not a public place, within the prohibition of the statute, if it is a place of religious worship. This is not correct; and a place of public worship, where people are assembled, would be a public place, within the meaning of the law.
“Bill of exceptions No. 8 is in reference to a public place, and is sufficiently covered in the main charge, and presents no error.”

The judgment is affirmed.  