Opinion
No. 892.
Decided January 29th, 1896.
1. Permitting Gaming — Indictment — "Public House."
A house for retailing spirituous liquors is a public house, and an indictment, for permitting cards to be played in such house, is not bad because it omitted the letter "c" from the word "public." The words "a publi place, to-wit," may be eliminated as surplusage, and the indictment will still be sufficient.
2. Statement of Facts Filed Out of Term Time — Practice on Appeal.
A statement of facts filed out of term time cannot be considered on appeal, where there is no order of court allowing it to be so filed.
APPEAL from the County Court of Johnson. Tried below before Hon. F.E. ADAMS, County Judge.
This appeal is from a conviction for permitting cards to be played in a house for retailing spirituous liquors, the punishment assessed being a fine of $25.
The opinion states the case.
[No brief for appellant.]
Mann Trice, Assistant Attorney-General, for the State.
The indictment charged that appellant permitted cards to be played upon premises under his control, "then and there being appurtenances to a publi place, to-wit: a house for retailing spirituous liquors." It is contended that the omission of the letter "c," from the word "public" renders the indictment vicious. We do not think so. Omitting the words "a publi place, to-wit," the indictment is sufficient. It would then read, "* * * then and there being appurtenances to a house for retailing spirituous liquors." Mayo v. State, 7 Tex.Crim. App., 342. The statute makes a house for retailing spirituous liquors a public house. Penal Code, Art. 355. The statement of facts, having been filed out of term time, cannot be considered, because an order was not entered allowing it to be so filed. The charge, in the absence of the evidence, is applicable to a case provable under the allegations of the indictment. Besides, there are no exceptions reserved to said charge. Loyd v. State, 19 Tex.Crim. App., 321. The judgment is affirmed.
Affirmed.