Deisher v. State

• Decision Date: 08 June 1921
• Docket Number: (No. 6093.)
• Citation: Deisher v. State, 233 S.W. 978, 89 Tex.Cr.R. 467 (Tex. Crim. App. 1921)
• Parties: DEISHER v. STATE.
• Court: Texas Court of Criminal Appeals

233 S.W. 978

DEISHER v.STATE.

(No. 6093.)

Court of Criminal Appeals of Texas.

June 8, 1921.

Appeal from District Court, Erath County; J. B. Keith, Judge.

John Deisher was convicted of permitting the use of property under his control for gambling, and appeals.Reversed and dismissed.

Grisham Bros., of Eastland, for appellant.

C. M. Cureton, Atty. Gen., for the State.

HAWKINS, J.

Conviction was for knowingly permitting property under control of appellant to be used for gambling purposes.Punishment was assessed at two years' confinement in the penitentiary.

The first count in the indictment under which appellant was convicted, and the only one submitted to the jury, omitting the formal parts, is as follows:

Did "knowingly permit property and premises there situated, and then and there under his control, the same being then and there not a private residence occupied by a family, to be used as a place to bet and wager and to gamble with cards then and there played, and did then and there knowingly permit said property and premises to be used as a place where people resorted to to gamble, bet, and wager upon games then and there played with cards."

Under authority of the case of Jerry Francis(No. 5775)233 S. W. 974, this day decided, this case must be reversed.It is not necessary to review the authorities, nor to discuss the reasons, because they have been fully set out by the court in the Francis opinion, in which we have held that article 572 (389) and article 559 (388b) are both in effect, and not in conflict.In so far as Robertson v. State, 70 Tex. Cr. R. 307, 159 S. W. 713, andStevens v. State, 70 Tex. Cr. R. 565, 159 S. W. 505, hold contrary views, we disapprove the same, and reaffirm Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208.

Before a conviction for a felony under article 559 (388b) Pen. Code 1911, can be sustained, if the charge be for "permitting," the proof must show that accused was the owner of property or premises, or had the same under his control; that it was being used as a place to bet or wager, or to gamble with cards, dice, or dominoes; or that it was being used as a place in which to keep or exhibit for the purpose of gaming a bank, etc.; or that it was being used as a place where people resorted to gamble, etc.; that the accused knew it was being so used, and knowingly permitted it to be used for that purpose.

If the charge be for "renting," the proof must show that accused rented to another certain...