Nail v. State

• Decision Date: 12 April 1899
• Parties: NAIL v. STATE.
• Court: Texas Court of Criminal Appeals

50 S.W. 704

NAIL v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1899.

Appeal from Hunt county court; W. H. Ragsdale, Judge.

Sam Nail was convicted of gaming, and he appeals. Reversed.

J. G. Matthews, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of violating the gaming laws, and his punishment was assessed at a fine of $10; and he appeals.

Motion was made to quash the indictment, which was overruled, and this is assigned as error. The charging part of the indictment is as follows: "That said Sam Nail did then and there unlawfully play at a game with cards in a public place, to wit, in a room in Wolfe City, which room was then and there a common resort for gaming." The room is not one of the designated public places under the statute, and, not being so, its public character should have been averred. Metzer v. State, 31 Tex. Cr. R. 11, 19 S. W. 254; Dailey v. State, 27 Tex. App. 569, 11 S. W. 636. It will be noted here that the pleader attempted to give the room in question a public character by describing it as a common resort for gaming. An outhouse where people resort may become public, and any room attached to one of the public houses enumerated and included in the statute, commonly used for gaming, is also a public place, and a private room of an inn or tavern is within the meaning of a public place where it is commonly used for gaming. If it was intended to give the room a public character, as one used by the public, or where the public were in the habit of resorting, it should have been so described. This was not done; but we take it that the pleader intended to give the room in question a public character by the allegation "that it was then and there a common resort for gaming." If the fact that it was "a common resort for gaming" was equivalent to alleging that it was a gaming house or a gambling house, then the indictment would be good; but it has been distinctly held that "a resort for gaming" is not the equivalent of a gaming house or a gambling house. See Miller v. State, 35 Tex. Cr. R. 650, 34 S. W. 959; and we refer to said case for a full discussion of the subject. The indictment being bad, the judgment is reversed, and the prosecution ordered dismissed.