
    Harris v. The State.
    On an indictment for permitting a faro bank to be kept and exhibited in the defendant's house, it is not sufficient to prove that the house was owned by the defendant and that the faro bank was kept and exhibited in it. There must be some further evidence, either positive or presumptive, that the defendant permitted it.
    On an indictment for renting a room in defendant’s house to certain persons, to the jurors unknown, for the purpose of keeping and exhibiting a faro bank, it is not sufficient to prove that the defendant rented tile room and that a faro bank was kept and exhibited in it. There must be some further evidence of facts showing that defendant rented the room for the purpose of keeping a faro bank.
    Appeal from Harris. The appellant was indicted under the gambling act. The indictment contained two counts : the first, for permitting a faro bank to be kept and exhibited in his house; the second was for renting a room in his house to certain persons, to the jurors unknown, for the purpose of keeping and exhibiting a faro hank for gaming.
    The charge contained in the first count is set out in the following words : “In a certain house owned and kept by the said Joseph A. Harris, in the city of Houston, in the county aforesaid, did-then and there permita faro hank to be kept and exhibited in his said house, contrary to the laws,” &a.
    
    The second, after giving the venue, charges the offense as follows: “The said Harris did then and there rent to certain persons, to the jurors unknown, a room in his the said J. A. Harris’ house, for the purpose of keeping and exhibiting a faro bank, contrary,” &c.
    There was a verdict of guilty, and judgment, from which the defendant appealed. There was a hill of exceptions, signed by the judge, taken to charges refused and charges given. The exceptions are as follows:
    The defendant’s counsel asked the judge to charge the jury that it is necessary, to sustain the prosecution under the'first oount, to prove facts showing a knowledge on the part of the defendant that gamiiig was carried on in his house, which charge was refused; and the jury was charged that it was sufficient to sustain the prosecution on the first count to prove that the house was owned by the defendant and that a faro bank was exhibited in it.
    Second, that it was necessary, to sustain the prosecution under the second count, to prove facts showing that defendant rented the house, as charged in the indictment, for the purpose of keeping a faro bank, which charge the court refused to give, and charged the jury that it was sufficient to sustain the prosecution under the second count to prove that the defendant rented the house and that a faro bank was kept therein.
    Third, that a landlord is not responsible under this prosecution for the illegal acts of his tenants in the house, without proof of his knowledge or consent thereto, which charge the court refused, and charged the jury that when it is shown by proof that a person rented a house and that the tenant kept a faro hank therein, the law presumes the renting to have been for the purpose of keeping a faro bank. There was no statement of facts.
    
      Webb and Gray, for*appellant.
    I. The court erred in refusing the first instruction as asked, and in giving a directly opposite one to the jury. The giving the opposite instruction shows (even without a statement of facts) that the one asked was pertinent and applicable to the case. At all events, if the instruction given was erroneous, it is sufficient to reverse the judgment. If the charge present a general principle of law and the application of the evidence to it is left to the jury, there is no necessity for the facts to appear in the record. The inquiry will he, was the jury instructed correctly as to the law? (2 Pet. R., 15; 1 Stew. <£f Port. R., 71; 2 Har. & Johns. R., 376; 8 Port. R., 430, 440.) The error in the charge given consisted fin assuming that the defendant was guilty of the offense charged, without proving any intention, either expressed or implied, to violate the law, or any 'knowledge on his part that it was violated or intended to be violated through 'his instrumentality by others. The offense charged was the permitting “a faro hank to he kept and exhibited in his house.” Now, to permit it he must 'have known that it was done or intended to be done. He could not have given his assent to an act of which he was totally ignorant. The instruction, then, that the simple proof of the ownership of the house and that a faro bank was kept in it was sufficient to sustain the prosecution on the first count, was •clearly erroneus and well calculated to mislead the jury. The house may have been a waste one, and one that the defendant had not seen or occupied for any purpose of his own for months, and yet under this charge, if a gambler had 'taken temporary possession of it for one night only, without the owner’s permission or knowledge, and exhibited a faro bank in it to none others but his own associates, the defendant must have been convicted. (3 Pike R., 84; 2 Pot. U. S. Dig., p. 77, sec. 38.)
    If. The second instruction was equally erroneous. The renting of the house ■was not per se an offense. To make it one, the defendant must have rented it with a view to violate the law, or in other words, with an evil intent. The essence of the offense was the renting for the purpose of keeping a faro bank, ■or with a knowledge that one was to be kept in it, which knowledge would 'imply that it was rented for that purpose. But a knowledge was essential to •constitute an evil intent on the part of the rentor, and without which no crime •could be committed. (4 Chit. Blk., p. 21; Crown Cases, 328; 2 Pet. U. S. Dig., p. 152, sec. 232; S Port. R., 4(12, 404.)
    III. The third instruction is obnoxious to the same objection and is erroneous in another point of view. It assumes, as a presumption of law, that an -act, innocent and legal in itself, is to be construed to have been done for illegal purposes, if in the range of possibilities an illegal act may afterwards be •connected with it by others, and that too without any knowledge that such subsequent act was intended to be connected with it, or that it was afterwards •connected with it. '(2 Cond. 11., C12.) The law, it is respectfully submitted, gives rise to no such presumptions. * It never presumes a party to act from criminal motives unless from the act itself they are clearly inferable. If the -act be such as may fairly be ascribed either to a good or bad motive, the law, iu its charities, will always ascribe it to the good one. (Roscoe 15v., p. 34; 3 Mass. K., 399; 12 Eng. Com. L. R., 371.) The rule is believed to be that •when an act is in itself unlawful, an evil intent will be presumed, and need not be averred or proved; but when the act is not per se unlawful, (a«, for instance, the renting of a house,) and to make it so it must be accompanied by .an evil intent, the evil intent must be alleged and proved, otherwise no crime is shown. (1 Chit. Cr. L., 233; 3 Johns. R., 511; 0 Yerg. R., 345; 3Yerg. R., •283; 2 Phil. Ev., Cow. & Hill’s Notes, 297, 298.)
    IV. The motion in arrest of judgment.should have been sustained. The ¡first count is defective because it charges no offense.
    Hamilton, for appellee.
    It is maintained that the charge of the judge in the •court below was correct; for it is contended, under the very words of the statute, that he was bound to inquire and be satisfied that he did not rent the room for the purpose of committing the offense. He is- responsible not only .for his own purpose, but for the purpose of the party to whom it was rented; for he was bound to inquire and know that it was not for such a purpose that he rented it. This is a matter peculiarly in his own knowledge; and he might have set up his defense that he did make the necessary inquiry, to rebut any presumption of such a knowledge. (8 Shep. R., 34; 2 Pet. U. S. Dig., p. 153, -sec. 230.) There being no statement of facts in the case, (an omission for which cthe appellant is responsible,) this court has no means of ascertaining on which count he was convicted. The verdict being general, can be imputed to-either or both; and the charge assigned as erroneous having no relation to the' first count, must be disregarded, as in tile case of Chandler v. The State, decided at the last term of the court. They have iu nowise shown that the verdict was-unsupported by the evidence, to convict him of the offense charged in the first count. They do not show that he was convicted on the second count alone. So that even if the charges wore all erroneous, the conviction must stand.
   Lipscomb, J.

The indictment in this case was under the 9th section of the act of 1840 to suppress gaming. The section is as follows: “ That if any person shall permit any banking game or such as are inhibited by the third section of this act to be kept in his or her house, or shall rent a room for this purpose, he or she shall suffer the same punishment as those convicted of keeping such banks.” It must be obvious to every one that, by a fair construction of the language of the law, a knowledge of the fact forbidden by the law is a constituent ingredient in the offense." It is difficult, if not impossible, to conceive of any definite meaning to the word permit, without carrying; with it a knowledge of the tiling permitted. If one is ignorant of the existence of a fact, it could with no propriety be said that lie permitted it. If, however, there is no evidence of a positive permission, secondary evidence can be resorted to. There may be no positive evidence of an express permission from, the master of the house that tilings forbidden by law have been done and transacted iu his house ; but if it is proved that lie witnessed the transaction, it would be an implied permission to do the act if lie did not prevent its recurrence and immediately put a stop to it. Again, if his house was small, the presumption would be strong that he knew"of what was going on iu it. If, however, it contained fifty or one hundred apartments, occupied by boarders, the presumption would be much weakened of his knowledge of what might be done by boarders in those apartments. But if the presumption of knowledge of the transaction lias been created, all the circumstances iu rebuttal of such presumption should come from the party against whom it lias been raised. On the trial of an indictment, like the trial of all other facts, tiie best evidence the nature of the case admits of must be produced to establish the-charges contained in it. On the question presented by the charge on the first count there can be no difference of opinion, but that express permission would, be the best evidence in support of the charge contained in this count; but if’ this could nob be procured, some fact onghtto be shown from which such permission may be fairly inferred. When this lias been done the prosecution has-made out a prima facie ease, which will stand as proved if not rebutted. If it were proved that the defendant lived iu or occupied the house, from such fact, as before stated, the presumption would arise that if a faro bank was kept or .exhibited in a house so in his possession it was within his knowledge, and unless rebutted would be enough to sustain the charge. But I cannot "believe liiat the mere fact of ownership of the house, without possession according to the ordinary transactions of the business of life, would necessarily raise that presumption, because the owner might be in possession of the house he so owned. It might be in the possession of a tenant, and the owner know nothing about what was done in it. If the defendant was in possession, whether as owner, .tenant, or as a trespasser, it would be “his house ” within the meaning of the law.' I believe therefore the court erred in the charge given on the first count in the indictment.

On the second count: It seems to me that the charge asked to be given was precisely within the terms of the law; that it was necessary, to sustain the prosecution under the second count, to prove facts showing that the defendant rented the house charged iu the indictment for the purpose of keeping a. faro bank. I believe the court ought to have given the charge as asked; and it would certainly have been proper for the court to have further explained what would be evidence of a knowledge on the part of the plaintiff that the-room was intended to be used for keeping or exhibiting a faro bank; and in the absence of positive proof of such knowledge, that resort could be had to the proof of some fact or facts from which it could be fairly inferred. But I cannot concur with the court below “that it was sufficient to sustain the charge to prove that the defendant rented the house, aud that a faro bank was kept or exhibited therein.” Suppose that tire defendant had leased out his house for a year to an entire stranger, without having any knowledge what use the tenant could make of it, and the tenant should keep a faro bank or permit one in the house : is it possible that the fact of the owner having rented the house would be sufficient to raise a presumption against him? Or would the fact of his house being so occupied be a sufficient ground for ejecting his tenant? I think not. Renting a room, without any attendant circumstance to prove that it was known to what use it was to be applied, would not raise a presumption of such knowledge. If the defendant knew the habits and calling of the person who applied to him to rent his house to be that of a gambler, the inference might well be drawn that the defendant knew in what way it was intended to occupy his house. To require the defendant to prove his want of knowledge of the intention of tiróse who might wish to lease a house from him would be requiring him to prove a negative; and surely the ordinary rules of evidence should not be inverted and a man be called to prove his innocence before a reasonable presumption of his guilt had been raised. Such a rule would have a great tendency to diminish the value of property, as landlords would not know to whom they could with safety rent their houses, lest the tenant should permit a prohibited game to be played, and thereby subject the owner of tiie house to the pains aud penalties imposed by the law. No such rule is called for by the policy or the terms of the statute. If such games are exhibited, a conviction of the person in possession or having the immediate control of the house would not be difficult- I cannot, therefore, consistently with what I consider the well-established rules of evidence, give my sanction to the two first charges given by the court below to the jury, and it is needless to consider the third charge. It is the opinion of the majority of the court that the court below erred in the two charges given, which have been discussed, and in refusing to give the two first asked by the defendant. The judgment is therefore reversed and the case remanded.

Judgment reversed.

Wheeler, J. In this case I give no opinion.  