
    GILL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    1. Indictment and Information (§ 119*)— Surplusage.
    Striking out as surplusage the words “and directly 'and indirectly” from an indictment charging that defendant did unlawfully and directly and indirectly keep and was concerned in keeping a house where spirituous, vinous, and malt liquors were kept for sale in quantities of a gallon and less, without having first obtained a license under the laws of the state to retail such liquors, it charges the offense denounced by Pen. Code 1911,- art. 500, of keeping and being concerned in keeping a disorderly house, defined by article 496 as a house where spirituous, vinous, or malt liquors are sold or kept for sale, without having first obtained a license under the laws of the state to retail such liquors.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    2. Intoxicating Liquors (§ 236) — Disorderly PIouse — Keepers—Evidence.
    Evidence on a prosecution for keeping a disorderly house where liquor was sold without a license, held to show defendant was the keeper of the house.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3. Intoxicating Liquors (§ 150) — Disorderly Houses — License.
    It is no defense to a prosecution for keeping a disorderly house where liquor is sold without a retail license that it was in territory where a license could not be obtained.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 164, 165; Dec. Dig. § 150.]
    Appeal from Dallas County' Court at Law; W. F. Whitehurst, Judge.
    Dan Gill was convicted of keeping a disorderly house, and appeals.
    Affirmed.
    Walker & Williams and Robert B. Allen, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

At a former day this case was dismissed because of defective recognizance. Since then appellant has filed a valid recognizance, and we will now consider it on its merits.

Appellant was prosecuted under an information containing several counts, but the court in his charge only submitted the third count, under which appellant was convicted. This count charged: “And in the name and by the authority aforesaid, the county attorney aforesaid further presents in and to said court that one Dan Gill heretofore, on the 16th day of July, A. D. 1911, in the county and state aforesaid, did unlawfully and directly and indirectly keep and was concerned in keeping a certain house then and there situated as a house where spirituous, vinous, and malt liquors were sold and kept for sale, in quantities of one gallon and less than one gallon, without having first obtained a license under the laws of the state of Texas to retail such liquors.”. .

Appellant moved to quash the information, alleging that it charged no offense, because of the use of the word “indirectly,” saying there was no authority in .law for such. If we treat this as surplusage, and strike out the words “and directly and indirectly,” we think the language used in the information would charge an offense. The Penal Code defines a disorderly house as a “house where spirituous, vinous or malt liquors are sold or kept for sale, without first having obtained a license under the laws of this state to retail such liquors.” The language in the complaint charges appellant with keeping and being concerned in keeping this character of house, and this made an offense under our laws. Articles 496 and 500 of the Revised Penal Code.

We think the evidence clearly establishes that appellant was the “keeper” of the house in which the liquor was sold, and further establishes the fact that he had no license to sell such liquors, as there is an admission in the record that no person could obtain a license in the territory where the house was situated in which the liquor was sold. The admission reads: “It was agreed by and between the state and the defendant herein, as a fact to be considered as proven in evidence herein, that the place formerly known as ‘Little Germany’ and situated at the southeast corner of Ervay street and the Santa Fé Railroad, in the city of Dallas, Texas, was outside of the saloon limits of said city of Dallas, Texas, and was in a district in the city of Dallas, Texas, in which the sale of intoxicating liquors is prohibited by the city charter of the city of Dallas, enacted by the Legislature in 1907, as aforesaid.”

The evidence shows defendant was present at each and all the times a sale of intoxicating liquors is shown to have been made, that he waited on the customers, that beer was delivered to him at this house, and on one occasion he paid the driver for it. There is no suggestion that any other person had any control over this house other than defendant, and he and he alone is shown by the record to be in possession of it, keeping it. It is true, the driver of the beer wagon says, so far as he knew, defendant may have been working at this place for some one else; but no one testifies that he was working for any one else, and all the facts and circumstances would lead one to the inevitable conclusion, and it is the only legitimate one to be drawn from it, that defendant was the keeper of this house, at the time he made the sales of liquor to the witnesses testifying. It was not necessary for the court to charge on the law of accomplice testimony. Walker v. State, 72 S. W. 401; Moreno v. State, 143 S. W. 161, and cases there cited.

The fact that sales were made in territory where appellant could not obtain license would be no defense, and the court did not err in refusing the special charge presenting this issue. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176. Neither was there any error in refusing the peremptory instructions, nor the other special charges requested. Under the evidence in this case, the complaints of the charge of the court present no reversible error.

The judgment is affirmed.  