Goolsby v. State (159 S.W. 731, 1913)

PRENDERGAST, J.

Appellant was indicted, tried, and convicted under article 572, P. C., and fined $25. After full and thorough consideration in the ease of Robertson v. State, 159 S. W. 713, from McLennan county, recently decided but not yet officially reported, we held that article 559, P. C., which was one of the articles of the Acts of 1907, p. 108, clearly repealed said article 572 and also article 573, P. C. And in that opinion we expressly overruled the case of Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208.

Appellant, in the court below, made a motion to quash said indictment, among other grounds, because it does not charge an offense against the laws of Texas, which the court overruled. The indictment is not sufficient under said article 559, P. C., and the court erred in not sustaining said motion to quash. Under said article 559 the keeping by any person, for the purpose of gaming, any bank, table, alley, machine, wheel, or device whatsoever, or the keeping of a place where people resort to gamble, bet, or wager, upon anything whatever, and any place or device shall be considered as used for gaming or to gamble with or bet or wager if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming Or betting, is made a penitentiary offense. Also by said article if any one shall knowingly permit property or premises of which he is the owner, or which is under his control, to be used for any of said purposes, he is also guilty of a felony under said article 559; and as prescribed in said article, as stated above, any place or device shall be considered as used for gaming or to gamble with or for betting or wagering if any fees or money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting. Under this article, if any party shall keep a pool hall or pool table for the purpose of being used as a place to bet or wager or gamble, or as a place where people resort to gamble, bet, or wager thereon, or if he knowingly permits property or premises of which he is owner, or which is under his control, to be so used, he would be guilty of a felony and violate said article 559. And such place or device shall be considered as used for gaming or to gamble with, or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting. But the indictment in this case is insufficient to allege under any of the provisions of said article any of the offenses as prescribed thereby. It is unnecessary to discuss any other question raised in this ease.

Because of the insufficiency of the indictment, the judgment is reversed, and the cause dismissed.