
    Lookhart v. The State.
    A room kept as a common resort for persons desiring to playearás for money, although every person that desires may not be permitted to have access to it, is a public house within the meaning of the statute. (Hart. Dig., art. 568.) (Note 50.)
    Appeal from San Augustine. The appellant was indicted under the 72d section of the act “concerning crimes and misdemeanors.” (Hart. Dig-., art. 568.) The indictment charging that the defendant “ did permit a game with “cards, upon which money was then and there het, to he played iu'his house, “ which said house was then and there a public house, aud was then and “there a room occupied by said Wm. Lockhart, and was then and there “a common gaming room, adjoining and connected with a room used in “the town of San Augustine, by one Samuel Jordan aud one William T. “White, as a house for retailing spirituous liquors; and that said Wm. “Lockhart well knew that divers persons then and there assembled in the “ said room of him, the said Wm. Lockhart, were playing in the said common “gaming room a game with cards, upon which money was then and there bet, “yet he, the said Wm. Lockhart, did unlawfully and wilfully permit the said “game then aud there to be played,” &c.
    The averments in the indictment were fully sustained by the proof. The room was under the control of the defendant; he used it as a bedroom, aud permitted it to be habitually resorted to aud used for gaming by persons who played cards for money. He was the bar-keeper of Jordan & White, who retailed spirituous liquors in an adjoining room. The room was a shed room, aud was under the same roof with a billiard room and the room in which the liquors were vended. It was a place of common resort for those who played cards for money.
    The court charged the jury in substance that to authorize a verdict of guilty, they must bo satisfied that the defendant kept a common gambling house or room, where he permitted persons generally to play games at cards for money; but to sustain the charge in the indictment it was not necessary to prove on the part of the State that every person who desired had access to the room; proof that any given number of persons were permitted habitually to play there would be sufficient.
    The defendant was found guilty, and moved for a new trial and in arrest of judgment; which motions the court overruled, and the defendant appealed.
    
      Attorney General, for appellee.
   Wheeler, J.

The counsel in this court has declined, and we think very properly, to argue the assignment of errors in behalf of the appellant. The conviction was manifestly correct. The indictment describes the offense more circumstantially aud with greater minuteness of detail than was, perhaps, necessary. But this cannot be cause of complaint by the defendant. It is not perceived that any valid objection can be urged'to its sufficiency. The ground which appears to liave been mainly relied on below was, that the house or room where the offense was laid in the indictment was not a public house within the meaning of the statute.

A house may be said to be a public house either in respect to its proprietorship or its occupancy and uses. The statute, as we have had heretofore occasion to notice, (Shihagan v. The State, 9 Tex. R.,) evidently has reference to those houses which are rendered public by tlieir use as places of public resort. Such unquestionably was that described by the indictment and proof in this case. There can be no question that it was public within the meaning and intention of the law.

We are of opinion that there is no error in the judgment, aud that it be affirmed.

Judgment affirmed.

Note 50. — Pierce v. The State, 12 T., 210; Redditt v. The State, 17 T., 610; Horan v. Chief Justice of Travis county, 27 T., 226.  