Strong v. State
| Decision Date | 16 April 1913 |
| Citation | 156 S.W. 656 |
| Parties | STRONG v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
W. T. Strong was convicted of crime, and he appeals. Reversed and remanded.
W. F. Ramsey, of Austin, and Allen & Flanary, Gibson & Callaway, and C. F. Greenwood, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
The facts disclose that appellant leased a certain building, known in the statement of facts as the Astor Hotel, on Main street, in the city of Dallas, at $200 per month. This rental was due in advance on the first day of each month. That part of the building rented consisted of the second and third floors. The contract was for two years, beginning January 1, 1911. The contract was in writing and signed by H. L. Edwards, Thomas Bros., W. Leslie Williams, and by appellant. Williams was the party through whom appellant leased the property. Within a month, perhaps, after the execution of this lease contract appellant, with the consent of Williams, sublet or subleased the identical property to Gurdy. The lease or sublease to Gurdy by appellant was in writing and a duplicate of the lease from Williams to appellant, except necessary changes to meet the fact it was a sublease. Williams testified in this respect substantially as follows: Shortly after the lease appellant asked him to change the wording of the contract in regard to subletting the same. Witness refused to change the writing in the contract, but informed appellant that it would not make any difference about him subletting the building, but he would not release appellant from paying the rent. He says, "I told him if he did sublet the building I would look to him for the money; that I would not release him from liability." The day after the execution of the lease to appellant, Williams says, "I expressly told him that he could sublet the premises." It is also shown that appellant was engaged in running a gravel pit west of Dallas. The state further introduced testimony to the effect that gambling was carried on in a room on the third floor of the building, and there is some evidence that appellant was in that room on one or two occasions, and from the circumstances it may be deduced that appellant was aware that gambling occurred in the room. The state further showed it was a gambling room, with the paraphernalia and matters of that sort, and quite a number of games were played. Witnesses testified that a man named Cornwall would sell the checks and take in the "rake-off" or "take-off," but that appellant never had anything to do with the games. Appellant introduced in evidence the written lease from himself to Gurdy. This written lease was for the same premises and building described in the lease contract from Williams to appellant; the difference being that it only covered one year instead of two years, as did appellant's lease. All the gambling herein mentioned and all the matters connected with this transaction occurred within the time of the lease by appellant to Gurdy. Gurdy was to pay appellant $250 a month in addition for the building, and the evidence shows that he did pay it as per agreement. Gurdy took charge and ran it as a hotel, with the usual number of clerks and such things, and all rooms on the second and third floors of the house were under the control of Gurdy, and in his absence under the control of his clerks and employés. It is shown that occasionally he was out of the city on short trips. On the third floor there was a clubroom, a gymnasium, and the room in which the gambling occurred. It is also shown in this connection that appellant in the hallway on the second floor had a desk where he sometimes transacted his private business, which was in no way connected with the hotel. Perry, Riley, and Dymock were the clerks at the hotel; sometimes one was on duty at night, and sometimes the other. Riley testified that he collected the money and turned it over to Gurdy, and in Gurdy's absence would pay the rent and attend to all matters of that sort necessary about the hotel. All witnesses who testified in that respect stated that appellant exercised no authority or control over the building, or over any of the employés in or about the building, and that Gurdy was present continually when not "off on short trips." The indictment contains six counts. It is unnecessary to mention any of the counts, except those submitted by the court in the charge, which were the first and second counts. The first count charged that appellant did unlawfully keep, and was interested in keeping, the premises and building for the purpose of being used as a place to bet, wager, and gamble with cards, etc. The second count, the one under which the conviction occurred, charged appellant "did then and there unlawfully and knowingly permit a certain building, room, and place, which building, room, and place was then and there under the control of the said W. T. Strong to be used as a place to bet, wager, and gamble with cards, and as a place where people resorted for the purpose of betting, wagering, and gambling with cards, against the peace and dignity of the state."
So it will be discovered from the indictment, charge of the court, and verdict of the jury that it was under the second count the conviction occurred. The statute (article 559, Pen. Code) reads as follows: "If any person shall rent to another, or shall keep or be in any manner interested in keeping, any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes, or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, or shall knowingly permit property or premises of which he is owner, or which is under his control, to be so used, shall be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary," etc. Applying the provisions of this statute to the two questions submitted by the court, it will be discovered that under the first count it would be necessary to show that appellant was either the keeper or interested in keeping the premises for gambling purposes. Under the second count it would be necessary for the indictment to charge either that appellant, as owner, knowingly permitted the premises to be used for such gambling purposes, or that the premises was under his control, and that he permitted it to be used for such purpose. So this clause of the statute provides a different means of committing the offense from that charged in the first count. The jury having acquitted of that charge, it is unnecessary to notice it further with any degree of particularity. Under the second count a party may be indicted in one of two ways: Either that as the owner he knowingly permitted his premises or property to be used for such gambling purposes, or, not being the owner, he permitted the premises, when under his control, to be used for said purposes. Appellant could not be convicted as the owner, because there was no allegation that he was the owner. Therefore, he could be convicted only under the other clause, if at all, for permitting premises under his control to be used for the purposes indicated. The evidence is conclusive that he was not the owner of the property. It was leased by appellant; therefore he was not the owner. It would be a self-evident proposition that appellant could not lease from himself his own property, or property of which he was the owner. It is also uncontroverted that with the consent of the lessor appellant subleased the property in question for one year, and in writing, to his subtenant or sublessee Gurdy; that Gurdy went into possession of the property and ran it as a hotel, employing all clerks and other employés about the hotel necessary for that purpose. Without going into any statement further than above, the evidence, we think, is undisputed that appellant leased the property. It is also undisputed that appellant, in writing, subleased the property for one year to Gurdy. This lease was read in evidence before the jury as well as the written lease from the landlord to appellant. It is evident that, unless it is shown that the premises were under the control of appellant at the time the gambling was carried on, he could not be convicted under the second count. Two things must concur: First, that the premises were under the control of the accused; and, second, that he knowingly permitted gambling to go on in those premises or in the building while it was under his control, otherwise the state would not have a case.
The first proposition in this connection is: The court erred in failing and omitting to instruct the jury in affirmative language that, unless appellant and not Gurdy had the premises under his control at the time of the alleged gambling, he would not be guilty. This charge should have been given. The court, submitting the second count, confined the jury to the issue that appellant knowingly permitted the building, room, or place which was then and there under his control to be used as a building, room, or place for the purpose of gaming, and that people resorted there, etc., for that purpose. Appellant requested the following charge, which was given: ...
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