
    BROWN v. STATE.
    (No. 7147.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.
    Rehearing Denied Oct. 3, 1923.)
    1. Criminal law <&wkey;l 1701/2(1) — Question, though leading, held not reversible error.
    In a prosecution for keeping a room in which to gamble, permitting question by prosecuting attorney whether accused’s place “was known as a gambling house, wasn’t it?” though leading, held not reversible error.
    2. Criminal law <&wkey;l 144(16) — Appellate court will conclude that verdict referred to charge in indictment to which it was restricted by instructions.
    Where a part of a count was not submitted to the jury, the appellate court will not assume that the verdict had reference to the omitted part, but that it referred to the charge in the indictment to which it was restricted by the court’s instruction.
    3. Gaming <&wkey;97( I) — Admission of evidence that accused, charged with keeping gaming house, played games, held not error.
    In a prosecution for keeping 'a room in which to gamble, admission of evidence over objection that accused played and bet in a card game held not error.
    4. Gaming <&wkey;63(3) — Vagrancy statute held not to have repealed statute prohibiting gambling.
    Pen. Code 1911, art. 634, subd. (k), the vagrancy statute, did not repeal Pen. Code 1911, art. 559, prohibiting the keeping of a place to gamble.
    On Motion for Rehearing.
    5. Indictment and information <&wkey;lll(t) — In prosecution for keeping gambling place, indictment need not allege place was not private residence.
    An indictment, under Pen. Code 1911, art. 559, charging accused with keeping a room and premises as a place to gamble, held-not bad for failure to negative the fact that such premises were a private residence, betting in which, under article 557, is not unlawful, unless the residence is commonly resorted to for gaming.
    Appeal from District Court, Brazoria County; M. S. Munson,' Judge.
    \ W. W. Brown was convicted of keeping a room in which to gamble, and appeals.
    Affirmed.
    A. E. & Carlos Masterson, of Angleton, and E. T. Branch, of Houston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for keeping, and permitting the keeping, of a building and room for the purpose of being used as a place in which to gamble. Punishment is assessed at two years in the penitentiary. The evidence is amply sufficient to support the verdict and judgment, and will not be discussed, unless necessary in considering some bill of exception.

The indictment contained two counts. The court' sustained a motion to quash the first, but overruled it as to the second, and as to this ruling appellant’s first complaint is urged'. The second count is an exact counterpart of the one upheld in Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004. See, also, Francis v. State, 90 Tex. Cr. R. 67, 233 S. W. 974; Deisher v. State. 89 Tex. Cr. R. 467, 233 S. W. 978; Fridge v. State, 90 Tex. Cr. R. 75, 233 S. W. 979.

State’s counsel propounded to his witness Letz the following question:

“This place here of Brown’s [appellant], which he was running mighty near all the time, it was known as a gambling house, wasn’t it?”

Objection was interposed, because (a) there was no allegation in the indictment to that effect; and (b) because the question was leading. The objection being overruled, the witness answered:

“Well, if we wanted to play a little poker, we would go up there. Some of them called it a bedroom, and some of them called it a gambling room. Yes, sir; I have been in that room more than one time; several times.”

The first ground of objection was not tenable, but the question was leading. The answer, however, in the light of the other evidence, does not call for a reversal.

Complaint is made that, the jury having found appellant “guilty as charged in the indictment,” no judgment could properly be entered thereon, notwithstanding the court submitted only one count for the jury’s consideration. Appellant bases this contention upon that part of the second count which alleges that appellant — “did then and there knowingly permit said property and premises to be used as a place where people resorted to gamble, bet and wager upon games then and there played with cards”; his point being that, although the court did not submit the first count, there is no way to determine whether the verdict relates to the allegation in the second count, which charges him with keeping a building and room for the purpose of being used for gambling, or whether it relates to that portion of the second count above quoted. Again the similarity of the Harvey Case, supra, appears. The part of the count quoted was not submitted to the jury, either in that case or the instant one, and, it not being before the jury, we could scarcely assume that the verdict had reference to it, but more logically conclude that the verdict referred to the charge in the indictment to which they were restricted by the instructions of the court. The case of Wood v. State, 47 Tex. Cr. 543, 84 S. W. 1058, to which we are cited by appellant is not in point. The decision there turned upon a duplicitous indictment. We have no duplicity here. The averments quoted charge neither a felony nor misdemeanor, as is apparent from the Harvey Case, supra, and may be properly treated as surplusage.

Complaint is made because the state was permitted to prove, over his objection, that he played and bet at a card game, he not being charged therewith. This exact point is decided adversely to the contention in Sanchez v. State, 90 Tex. Cr. R. 156, 233 S. W. 983.

The vagrancy statute (article 634, subd. [k], of the Criminal Code; Acts 1909, p. Ill) did not repeal, article 559, Penal Code, under which the prosecution in the present case proceeded. Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004; Fridge v. State, 90 Tex. Cr. R. 76, 233 S. W. 979; Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; Ex parte Oates, 91 Tex. Cr. R. 79, 238. S. W. 930.

Other questions are presented, all of which we have examined. We find no merit in them, and do not deem them of sufficient importance to discuss.

The judgment is afiirmed.

On Motion for Rehearing.

LATTIMORE, .T.

The Thirtieth Legislature in 1907 amended and rewrote article 388, P. C., and added articles 338a-338d, etc. The amended article 388 forbade betting or wagering at certain named or described games under misdemeanor pains and penalties, and contained the following proviso:

“No person shall be indicted under this section for playing said games with dominoes or cards at a private residence occupied by a family, unless same is commonly restorted to for the purpose of gaming.”

The terms of this proviso restrict its effect to the section containing it. Article 388b of said enactment, now article 559 of our present Penal Code, made felonious the act of renting to another, keeping, or being interested in keeping, any premises “for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes,” etc., “ * * * regardless of whether” the games mentioned “are licensed by law or not,” and said statute specifically states as follows:

“Any place or device shall be considered as used for gaming, or to gamble with or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if same is resorted to for the purpose of gaming or betting.”

Appellant’s conviction herein is under the last-named article. In his motion for rehearing appellant insists that the indictment charging him with keeping and being interested in keeping a certain room and premises as a place to be used for the purpose of gaming, etc., is fatally defective, because it falla to negative the fact that said room, premises, etc., was a private residence occupied by a family, basing this contention on the proposition that betting at cards is not unlawful, under article 557, when same takes place at a private residence, unless it be a residence commonly resorted to for the purpose of gaming.

That an indictment for betting at a game with cards under article 557 needs to state that such game was not at a private residence was denied by Judge Ramsey in Purvis v. State, 52 Tex. Cr. R. 343, 107 S. W. 55, and in Singleton v. State, 52 Tex. Cr. R. 625, 111 S. W. 736, and approved by Judge Davidson in Vinson v. State, 58 Tex. Cr. R. 47, 124 S. W. 652. We are aware of the fact that later this rule seems changed under a different personnel of the court in Purvis v. State, 62 Tex. Cr. R. 302, 137 S. W. 701, Ann. Cas. 1913C, 536; Chapman v. State, 63 Tex. Cr. R. 513, 140 S. W. 441; George v. State, 65 Tex. Cr. R. 91, 143 S. W. 621; Shelton v. State, 65 Tex. Cr. R. 489, 145 S. W. 340.

We do not quite see how this fact affects the question now before us. Appellant cites no authority holding that an indictment under article 559 should contain the negative provision contended for, and this court knows of no such authority. Even if the Legislature saw fit, in enacting the misdemeanor statute (article 557) penalizing the mere bettor or wagerer at certain games, to ingraft a proviso exempting from prosecution those who so bet at such games'When played at a private residence occupied by a family, this would afford no justification or excuse to this court for now in substance ingrafting such proviso on a different statute, a felony statute (article 559), penalizing those who prepare for and carry on gambling as a business. For illustration: Suppose the accused should fit up his private residence, in which he dwelt with his family, with card tables, cards, and other gambling paraphernalia, and admit that his purpose in so doing was that it should be used as a place for gaming, for people to bet and wager at cards. Upon what reasonable hypothesis could an indictment charging him with so doing be held bad, because it failed to negative the fact that such premises so fitted up and so kept were a private residence? We do not think it necessary that the indictment state that such was not a private residence. Each of the authorities cited by appellant and many others have been examined in this connection. We think the Sanchez Case, 90 Tex. Or. R. 156. 233 S. W. 982, and the cases cited in the original opinion announce the correct holdings.

This being the only point raised in appellant’s motion for rehearing, and being unable to agree therewith, the motion will be overruled.  