Hodges v. State

• Decision Date: 28 January 1903
• Citation: 72 S.W. 179
• Parties: HODGES v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

72 S.W. 179

HODGES v. STATE.^*

Court of Criminal Appeals of Texas.

January 28, 1903.

Appeal from Dallas county court; Ed S. Lauderdale, Judge.

Charlie Hodges was convicted of permitting gaming on premises under his control, and appeals. Affirmed.

Ellison & Cohron, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of permitting gaming on premises under his control, and fined $50, and prosecutes this appeal.

The charging part of the count in the indictment under which he was convicted reads as follows: "Did unlawfully permit a game with cards to be played in a room and house under his control; the said house then and there being a public place, to wit, a hotel inn." Appellant made a motion to quash the indictment on several grounds—among others, that under the law as amended, and under which this indictment was brought, the indictment should contain the negative averment, to wit, that said hotel inn was not a private residence occupied by a family. This brings in review a construction of the amendment to articles 379, 381, White's Ann. Pen. Code, on the subject of gaming, so far as they relate to this question. It will be noted that article 379, as amended, follows the original article, and includes every public house or public place mentioned by name which was contained in the original article, and then, in addition, makes it an offense for a person to play a game with cards at any place, except a private residence occupied by a family; that is, the portion of said article relating to this offense, as amended, reads as follows: "If any person shall play at any game of cards at any house for retailing spirituous liquors, storehouse, tavern, inn, or other public house, or in any street, highway or other public place, or in any outhouse where people resort, or at any place except a private residence occupied by a family, he shall be fined," etc. Now, the question presented is, does the phrase and sentence, "except at a private residence occupied by a family," qualify or enter into the definition of any of the places mentioned by name in the amended statute, or is it confined to any other place, except those places mentioned? We understand the rule deduced from the authorities is to the effect that if the negative averments are contained in the enacting clause, and are essentially descriptive of the offense, then such negative averments must be set out in the indictment. On the contrary, although such negative averments may be in the enacting clause, still, if it is not essentially descriptive of the offense, it need not be set out in the indictment. See State v. Duke, 42 Tex. 455, and authorities there cited. Here if it be conceded that the exception of a private residence is contained in the enacting clause, yet it is not essentially descriptive of the offense alleged. Indeed, the places named, by their very terms and our understanding of the language, contravene the idea that they are a private residence. In ordinary parlance, a store or hotel or saloon is not a private residence, and the allegation of one of these in the indictment of itself contravenes and negatives the idea that it is a private residence. The repetition that such a house named is not a private residence would only be putting the allegation in another form. This construction is re-enforced when we look at the article before its amendment and since. Indeed, the amendment, as shown above, was merely the addition of another clause, enumerating other places where playing cards was inhibited besides those previously mentioned; and in connection with the clause added,...