Strong v. State (70 Tex. Crim. 89, 1913)

DAVIDSON, Presiding Judge.

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 two hundred dollars 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, sub-let or sub-leased the identical property to Gurdy. The lease or sub-lease 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 sub-lease. 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 sub-letting the building, but he would not release appellant from paying the rent. He says, “I told him if he did sub-let 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 sub-let 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 there. 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 employes. It is shown that occasionally he was out of the city on short trips. On the third floor there was a club room, 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, Eiley and Dymoelc were the clerks at the hotel; sometimes one was on duty at night and sometimes the other. Eiley 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 respeet stated that appellant exercised no authority or control over the building, or over any of the employes 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, 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 were 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 wás 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 thé 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 Mm,self Ms own property, or property of which Tie was the owner. It is also uncontroverted that with the consent of the lessor appellant sub-leased the property in question for one year, and in writing to his sub-tenant or sub-lessee Gurdy; that Gurdy went in possession of the property and ran it as a hotel, employing all clerks and other employes 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 sub-leased 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:

“You are instructed in this case at the request of the defendant to be construed in connection with the main charge of the court that before you can find the defendant guilty under the second count contained in the indictment, you must believe from the evidence beyond a reasonable doubt, the defendant did knowingly permit premises under his control to be used as a place for gaming.

“And in this connection yoii are told that the word ‘knowingly’ means with full knowledge and intentionally, and unless you do believe from the evidence beyond a reasonable doubt that the defendant with full knowledge did permit the premises to be used as a place for gaming, and further believe that the premises were under his control, you can not convict the defendant under the second count.”

In the motion for new trial the •court’s general charge is criticised because it did not affirmatively submit to the jury the issue as to whether defendant had possession and control of said building and premises in question at the time the game is alleged to have occurred, or whether Gurdy had the actual exclusive possession and control of' the premises at said time; and it is contended the evidence conclusively shows that Gurdy did have actual and sole possession and control of said building and premises at all of said times when gambling is alleged to have occurred, but the issue being strongly raised, should have been affirmatively submitted to the jury in the charge of the court, and the failure of the court to so affirmatively submit the issue greatly prejudiced the rights of this appellant upon the trial and resulted in his hurt and injury, and must have caused the jury to believe that the issue was not raised by the evidence, or that the court did not give credit to the testimony of the defendant’s witnesses upon said issue. That issue was not submitted pertinently in any charge given. We are of opinion that this criticism of the charge is correct. In a general way the court charged the jury, both in the court’s charge and in the requested instruction, that they must find that the premises were under his control, and in that connection gave a definition of “knowingly.” In this connection it is also perhaps necessary to notice that the court gave the general definition. of principals, but in the application of the law of principals the court confined it to the first count in the indictment and not the second, and nowhere did he give the charge in regard to principals as to the second count. The central thought of the case was whether appellant was in charge of the premises or whether Gurdy endorsing the principles therein laid down is Humphries v. State, 68 lant should have been acquitted. The entire testimony for the defendant from beginning to end was to show that he was not in control of the property, but that Gurdy was. Appellant was not the “oionef” of the property, and, therefore, he could not be contieted from that standpoint. Sometimes the word “owner” may be held to include the lessee, but that construction could not obtain under this statute. The statute itself draws the distinction between the owner who is in control of the property, or has it in possession, and one who is not the owner hut has control and is in possession. If the allegation had been that he was owner, then it would be required to' show by the evidence that he was the owner. The conviction of an accused person under these provisions must depend upon his relation to the premises, and necessarily this must be limited on the trial to allegations in the pleadings. It will not do to say that he could be charged under one clause and convicted under another of the statute. The statute provides different means of constituting the offense, and it would take different evidence to sustain one from what it-would the other. Of course, the instructions must conform to the pleadings and the facts, and the facts must sustain the pleadings and justify the charge which is given. Wherever the statute provides the relation of parties to the crime, the State must charge and prove those relations in order to secure a conviction, and it occurs sometimes under these, statutes that the doctrine of principals would not apply, and we suppose the trial court recognized this in not applying the doctrine of principals to the second count. This question was discussed in the case of Mitchell v. State, 34 Texas Crim. Rep., 311. That was a conviction under the disorderly house statute, which provided punishment against a party who ivas the owner, lessee, or tenant, and it was held that it ivas necessary that one of those relations he charged and proved else conviction could not he sustained. Following this and endorsing the principles therein laid down is Humphries v. State, 68 S. W. Rep., 681; Strong v. State, 52 Texas Crim. Rep., 133; Cook v. State, 42 Texas Crim. Rep., 539; Hamilton v. State, 60 S. W. Rep., 39. The proposition may be thus stated: Where the statute defines the offense and confines it to certain named relations, those relations must exist, or there can be no offense, for it would not be within the statute. Why is this so.? Because the Legislature so determined by its authority, and limited the punishment to such defined offense. Cases supporting the proposition that the courts can not create offenses are too numerous to require citation; in fact, none ought to be required. It is basic, fundamental, constitutional. We are referred to article 388j of the original Act, now article 567 of the Revised Criminal Statutes, which reads as follows: "The use of any house, property or premises, by any tenant or lessee for any purpose, made unlawful by this law, shall terminate all rights and interests of such tendnt or lessee in same, and shall entitle the owner thereof to the immediate possession of said house, property or premises.” We suppose the contention of the State in this matter is intended to be if the house was used for gaming purposes and appellant was aware of that fact (the statute terminating the lease), that therefore he would be in possession of the premises, and any gambling that occurred in the house thereafter would render him guilty. It will be noticed by the provisions of article 567, supra, that only the owner would he entitled to possession of the property as against the tenant or lessee. The statute does not entitle the tenant to possession. Owner and tenant and lessee are not synonymous terms and do not mean the same thing under this statute. If the construction contended for by the State is correct; it would follow that gambling on the premises would put the tenant or lessee out of possession and place the owner in control. Appellant was the lessee, not the landlord, and was not the owner. To apply this to this case, and concede that when the gambling occurred the .lease contract was terminated, who would be in control ? The lease contract being out of existence, the owner would be in possession, the premises would revert to his control, and therefore he would be responsible. The tenant would, therefore, he out of possession hy operation of law. The statute expressly provides that gambling shall terminate all rights and interest of such tenant or lessee in the property, and shall entitle the owner to the immediate possession. It does not, however, provide that the mere fact the owner is entitled to' possession that therefore he is in possession of the property. What other steps requisite to be taken in order to assume possession of the property is not necessary here, we think, to decide. Appellant was not the owner nor was he prosecuted as such. The authorities agree to this proposition, that where the lessee sub-lets or sub-leases the property, and the sub-tenant or sub-lessee goes in possession with consent of the landlord, the relation of landlord and tenant is created between landlord and sub-lessee, and the possession of the property is in the sub-tenant or sub-lessee. Judge Stayton, delivering the opinion in Forrest v. Durnell, 86 Texas, 647, thus states the proposition: “If the landlord consents, expressly or impliedly, to the occupancy of an assignor or under tenant the relation of landlord and tenant necessarily exists between him and such person, for under the statute such holdings, are illegal without such consent.” Under the law when the landlord consented to the sub-lease of the premises Gurdy became the under tenant or sub-lessee, and the relations of landlord and tenant thereby necessarily existed between such landlord and Gurdy. This proposition seems to have been announced in the cases generally in this State. In the case of Robinson v. State, 24 Texas, 152, Judge Roberts, speaking for the court, said: “Another objection to the charge is, in substance, that it assumes that the defendant retained either a partial or a conditional control of the rooms rented to Meroney which gave him a right and made it his duty to prevent illegal gaming in them upon learning it was being carried on there. We do not think this is a proper construction of the terms of the lease. The lease purported to direct the use to be made of the rooms by Meroney and restricted him to using them only as bedrooms or sleeping apartments, but it did not follow as a consequence of that restriction that the defendant retained a right to control the rooms either partially or conditionally, so as to impose it upon him as a duty to prevent illegal gaming. The question in the case was, did the defendant have really and substantially the control of the rooms; and was not the execution of the lease to Meroney a false pretense and sham device to shelter the defendant from responsibility. Under the facts in proof the court might have submitted that question to the jury.- It would have enabled them to have considered the ‘whole case in the true light as dictated by their knowledge and observation of such matters. We think the court incorrectly instructed the jury as to the legal effect of the terms of the lease. Judgment is reversed and cause remanded/ ”

In the instant case the trial court did not even instruct the jury in regard to the effect of the sub-lease entered into between appellant and Gurdy. This he should have done. There is no reference to it in the charge at any point. In Borchers v. State, 31 Texas Crim. Rep., 517, Judge Hurt, speaking for the court, uses the following language: “The proof shows that the house called the premises in the information had been rented to, and in fact was under the control of Bell & Menasco, and that the defendant, though the owner, was not in control of same. Under such a state of facts he could not be convicted under article 365. But if the premises or house be rented to another for the purpose of being used as a place for playing, dealing or exhibiting any of the games prohibited by the provisions of chapter 3, Penal Code, the renter violates article 366, and is amenable to the punishment there named and must be indicted under that article. The court charged the jury in substance that defendant would be -guilty if he owned the house, knew that the cards were being played therein and did not revoke the lease and stop the playing. This is not the law, and the judgment is reversed and the cause is remanded.” The same principle was laid down in Brumley v. State, 12 Texas Crim. App., 609. In Elliott v. State, 39 Texas Crim. Rep., 242, Jones v. State, 17 S. W. Rep., 719, and Clark v. State, 4 S. W. Rep., 658, it was held that a lessor has no legal right whatever to carry prohibited weapons upon the premises of his tenant during the continuance of his lease contract, and this for the simple reason that the premises during the time are no longer his, but are in the exclusive control and management of his tenant. The same principle was again laid down in Zallner v. State, 15 Texas Crim. App., 23.

If under the present law the lease would be abrogated the owner would be in possession. The law here abrogates the contract and not the act of the contracting parties. The relation of the parties to the crime is fixed by the statute and its terms.

The word “control” in this statute has a technical meaning _ well understood. The accused party must control the premises. The property must be so under his control that he has a right to direct and handle it and bid or forbid the use of it, and where guilt depends upon this control, the evidence must Show it. In addition to cases already cited see Commonwealth v. Wentworth, 15 N. E. Rep., 138, 146 Mass., 36; State v. Frazier, 8 Atl. Rep., 347; State v. Abrahams, 71 American Decisions, 399.

Ho case has been cited to us which upheld the doctrine that where the property is in possession and under the control of the lessee, that the owner would be guilty of permitting the premises under his control to be used for gambling purposes. Hor has a case been cited to us, nor have we been able to find one, which holds that where the sub-lessee is in possession under the lessee, with the consent of the lessor, the owner or tenant has been held responsible criminally for permitting gambling on the premises, or that the property was under his control. The case of Santos v. State, 65 Texas Crim. Rep., 578, 146 S. W. Rep., 919, decided by this court, was decided upon a different proposition. In that case it was shown that the lessor had not authorized his tenant or lessee to sub-let the property, and it was therefore held by my brethren that De Los Santos and not the sub-tenant was in control of the house. The authorities seem to hold in that character of case that the legally unauthorized sub-tenant or sub-lessee would only be an employe of the lessee and-not a tenant, unless, as before stated, with the consent of the lessor, Forrest v. Durnell, supra. In the case of Commonwealth v. Wentworth, supra, this question was decided as herein stated. Field, J., rendering the opinion of' the court, said: “If a building is let to a tenant who enters into possession'under a lease, the building is not under the control of the landlord, but is under the con-/ t-rol of the tenant while he continues in possession under the lease, unless there are special provisions in the lease which give the control to the landlord.” Closing the case, the court said: “There was no evidence that the defendant actually had the control of the building described in the indictment. So far as appears, he had not the control, but he could have taken control by ejecting his tenant, if the tenant was using the building for the illegal sale of intoxicating liquors. The principal exception must be sustained, and it is unnecessary to consider the others.” That case, we think, is in point here. The evidence, therefore, places Gurdy in control of the premises. The written lease so shows, all the oral testimony so shows, and it seems to be uncontradicted. The only evidence, as we understand the statement of facts, which tends even to show to the contrary is that appellant had a desk in the hallway on the second floor of the building, while Gurdy was in possession and ran it as a hotel. Because appellant guaranteed payment for the rent to the landlord did not put him in control. This did not put him in possession of the property. We are, therefore, of opinion that the court erred in not charging the jury as contended by appellant. The jury should have been instructed that unless appellant had the house under his control, or if there was a reasonable doubt about this he should be acquitted, and if Gurdy was in control of the premises, or there was a reasonable doubt of that fact, then appellant should be acquitted. We are of opinion further that- unless the State can strengthen. its case by other evidence upon another trial appellant is entitled to a verdict of not guilty. He is clearly entitled to a verdict of not guilty under the facts of this case, because the State failed to show he was in control of the house, and the testimony shows that he was not; and does show it was under the control of Gurdy.

If the lease was abrogated on account of the gambling, the statute by its express terms places the owner in possession. Appellant was not the owner.

It is called to the writer’s attention, however, that in the case of Austin v. State, 61 Texas Crim. Rep., 573, in a dissenting opinion he used the following language: “If the owner of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property or premises to be so used. But in that case the renter would be guilty of keeping a gaming house; he would be in charge and control of the house himself. It would be bis premises by reason of his rental contract; he would be in possession. This case comes within that clause of the statute. In a sense, every man who keeps a gaming house is permitting parties to play in the house, if in fact they do play there, but the statute in regard to permitting gaming in houses has no reference to this condition of affairs, for, under those circumstances, the man would be a keeper.” The expression above, towit, “If the owner of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property or premises to be so used,” is .singled out by my brethren as authority for holding appellant guilty for permitting gaining to go on in the house under his control. That was a dissenting opinion, and if it correctly announced the law it could not sustain this conviction because appellant was not the owner. The prevailing opinion had decided the Austin case adversely from the way I believed it ought to be, and in arguing upon the question the writer used, by way of reasoning, the quoted expression. The question in that case was whether the renter who had charge of the place and invited people to his house as a resort for gaming, and engaged in gaming with them, was the keeper, or that he was permitting gaming in a house under his control. The question of ownership was not in the case. Appellant was only the renter. My view of the law was that he was the keeper of the house under the facts under one clause of the statute, and vjos not brought under the clause which denounced punishment for permitting gaming in his house. Knox v. State, 62 Texas Crim. Rep., 512. My brethren took the. other view of it, hence my dissent. The question was not in the mind of the writer, nor in the minds of the majority as to what would be necessary for the owner of the house to do in order to ascertain this right to entitle him to possession of the house. Ownership was not in the case, nor were we discussing article 567 of the Revised Penal Code, which provides termination of the lease between the tenant and the landlord and its effect. • If the language had been in the prevailing opinion and not in the dissent, it would have been but dicta, because the question was not in the case, and, therefore, it could not have been necessary to a decision. The writer did not undertake to state what steps were necessary to resume possession of the property on the part of the oivner when he ascertained gambling was going on in his house in order to make him guilty. A dissenting opinion is not an authoritative decision on any question, much less would an excerpt therefrom be so. regarded. But if a single expression is to be taken out of a dissenting opinion to be used as authority in a subsequent case, then all that is written in that connection should also go with it. In no event was appellant the owner of the house in question in this case. He was a renter, and had transferred his lease, and Gurdy, his sub-lessee, was in possession.

■Referring back a moment to the question involved as to the charge, we understand that the law of the case must be given, and where it is not given, and the error was one calculated to injuriously affect appellant’s right, whether it be of omission or commission, the. judgment should be reversed. If the court had given a charge to the effect that if the jury should find that Gurdy was in charge of the house and not appellant, and that by virtue of the lease contract the law put Gurdy in possession of the house, and they should find from the testimony, that he had actual control of it, they should acquit appellant, then the jury might and doubtless would have rendered a much more favorable verdict to the accused than they did; that is, they might, and as we believe should have done. In this connection we would further say, upon another trial the court in his charge to the jury should construe the effect of the written lease by appellant to Gurdy. It was a contract, and whenever a written contract is in evidence it becomes the duty of the court to instruct the jury as to the legal effect of that instrument. It is not necessary to cite authorities in support of this proposition. This the court did not do, but left the jury, under the charge given, to determine whether or not they believed appellant was in control óf the house, without charging affirmatively either the effect of the lease or appellant’s side of the evidence, that he was not in possession, but that Gurdy was.

If the lease was canceled by the statute, then it is evident from the terms of that statute and the facts that appellant was not in.possession because he was but the lessee. Under the statute in question the owner is not the lessee, nor the lessee the owner. It is based on this wide distinction.

The judgment is reversed and the cause remanded.

Reversed and remanded.

concurring opinion.

HARPER, Judge.

Being unable to agree in their entirely with either the opinion of Presiding Judge Davidson or of Judge Prendergast, I deem it proper to state my views upon the main issues.

In the first place we can not agree as to the proposition of our presiding judge that Gurdy ever became the tenant of the owner of the building. There was no express privity of contract between them, nor could it be implied, but the evidence rebuts such theory, consequently those cases cited by our presiding judge do not apply to the facts in this case. The contract contained an express stipulation against subleasing, and the agent of the owner stated to appellant he would not change such condition in the lease; but says, “I told him that it did not make any difference about him subletting the building, but that I would not release him from liability.” And further testified that appellant had continually paid him the rent each month, and under the agreement between them he looked alone to appellant, to which terms appellant consented and agreed. In addition to this the lease contract from Edwards to Strong was for two years from January 1, 1911, while the contract between Strong and Gurdy was only for one year from February 1, 1911. Our Supreme Court in the case of Davis v. Vidal, 151 S. W. Rep., 290, gave the question here presented exhaustive study, and in an able opinion held that Gurdy would not become the tenant of Edwards, the owner, but Strong would still remain Edwards’ tenant, and Gurdy would become a tenant of Strong. The sound reasoning in that case appeals to us, and we are fully convinced it correctly announces the law, and we refer to it for the authorities so holding.

Again, we can not agree with the opinion of our presiding judge wherein he says the rule of law as announced in Borchers v. State, 31 Texas Crim. Rep., 517, and other cases, is still the law in this State— that an owner who rents his house to another can not be convicted when he knowingly permits his tenant or lessee to use the rented property as a gambling house. The reason for the rule of law as announced in that case and other cases so holding no longer exists in this State, the reason being that when an owner made a valid lease contract, he parted with his property for the time and had no control over it, and, therefore, could not be held criminally liable for any act of his tenant during the life of the lease contract. This rule of law was the occasion and reason for the Legislature enacting article 567 of the Code: .“The use of any house, property or premises, by the tenant or lessee for any purpose made unlawful by this law (the gambling law) shall' terminate all rights and interests of such tenant or lessee in same, and shall entitle the owner to the immediate possession of said house, property or premises.” Wherever such statute has been adopted it has been held that the use of the house or premises for the prohibited purposes cancels the lease, and the relation existing between the tenant and landlord becomes the same in law as if one held over after the termination of tlie lease. (Taylor’s Landlord and Tenant, sec. 521, and authorities; Cyc., vol. 24, p. 1353, and cases cited; Am. & Eng. Ency. of Law, vol. 18, pp. 379-380.) In this latter work it is said: “The use of the premises by a subtenant for an illegal traffic avoids merely the sublease. It is otherwise, however, when such illegal use by the subtenant is with the consent of the lessee.”

The testimony in this case showing beyond question even if appellant had sublet the premises to Gurdy and Gurdy was in control of the premises, the illegal use of the premises w'as with the knowledge and consent of appellant, consequently neither appellant nor Gurdy could assert any legal right under the lease in law. The lease of each of them, if genuine, had been rendered void by the illegal use of the premises, and the owner of the building would be liable to prosecution for permitting his premises to be so used, when done with his knowledge, and a lease contract would be no protection to him subsequent to the time it was shown he had lcnowdedge that the property was being used for the illegal purpose. In his dissenting opinion in the Austin case, 61 Texas Crim. Rep., 573, the presiding judge so announced the rule, saying: “If the owmer of the house rents it to another, and the house is used for gaming purposes, when the renter did not rent it for that purpose, and he ascertains that his house is being so used, and he thereafter permits the gambling to go on, he would be guilty of permitting his property to be so used.” In his opinion in this case our presiding judge says that was but obiter dicta in that case—that the question was not involved in that case, and he used the expression only by way of argument. We agree with him that in that case the question did not arise and was not passed on by the majority of the court, and further, that he may have intended to use it only by way of argument, but in using the expression he announced the correct rule of law, since the adoption of article 573, and the cases quoted by him in his opinion in this case on that point are not the law of this State, since the adoption of that provision of the Code. And while, as he says, it was announced in a dissenting opinion, yet we want to say that we concur with him that such is the law, and I am authorized to state by Judge Prendergast that he also concurs therein, and such is declared to be the rule of law in this State in this character of case, and the fact that he has leased the premises will be no defense to the owner, where it is shown that he knows of the illegal use of the premises and thereafter continues to permit it to he so used.

The lease, under the law, having been rendered void by their acts, and appellant nor Gurdy being able to assert any legal right thereunder, the sole question would be, who was in possession of the premises ? Judge Prendergast has so fully digested the evidence we do not deem it necessary to do so, but merely state that it shows almost beyond question that appellant was in possession and control of the rooms used for gambling purposes, but if it could be said that there was some slight testimony that Gurdy was in control of the premises, such as that he once had a lease that covered it (which the testimony of his clerks would refute), yet it is so slight and inconsequential that a failure to charge thereon would not and should not result in a reversal of this case, and I concur in the (opinion of Judge Prendergast on this question, and the opinion of Judges Eoberts and Hurt copied therein and cited, and if these "were the only questions in the case, I would concur in its affirmance.

However, in bill Ho. 6 it is shown: “How comes W. T. Strong, defendant in the above entitled and numbered cause, and shows to the court that the indictment herein in this case against him was returned into this court by the grand jury of Dallas County on the 7th day of February, A. D. 1912. That the names of the witnesses on whose testimony said indictment was found are not endorsed upon said indictment; that the defendant, through his attorney, E. B. Allen, had requested the prosecuting attorney, to endorse upon the indictment herein the names of the witnesses upon whose testimony said indictment was found, and whom the prosecuting attorney expects to use against the defendant upon the trial of this cause, or to furnish defendant, or his counsel, with the names of said witnesses. That the prosecuting attorney, Currie MeCutcheon, Esquire, has refused and still refuses to disclose to the defendant, or to his counsel, the names of the witnesses upon whose testimony the indictment herein was found, or whom he expects to use against the defendant upon the trial of this cause, and has declined and refused, and still declines and refuses to endorse the names of any such witnesses upon the back of the indictment herein.

“This defendant says that he does not know the names of the witnesses upon whose testimony this indictment was found, and that he does not know who his accusers are, and does not know the names of the witnesses who will testify against him in the trial herein, and does not know what said witnesses, if any, will testify upon the trial of this cause. That the refusal of the prosecuting attorney to endorse the names of said witnesses upon the indictment herein, or to disclose the names of said witnesses to the defendant, or to his counsel, is in violation of article 432 of White’s Code of Criminal Procedure of the State of Texas, and is unlawful, hurtful and prejudicial to the defendant herein, for the reason that defendant will .be unable to properly preparé to meet and defend himself against the charges contained in said indictment without having some knowledge as to who his accusers are and upon whose testimony the indictment herein was found; that if any witness or witnesses shall' testify to the hurt or prejudice .of this defendant upon the trial of this case, he will then have no reasonable opportunity to rebut the testimony of such witness or witnesses by securing the presence of any other witnesses acquainted with the transaction in question, to testify as to the truth with reference thereto, and will have no opportunity to prepare to impeach the testimony of any witness or witnesses who may testify to any fact or facts that are hurtful or prejudicial to him; although defendant verily believes and alleges the fact to be, that if the names of said witnesses are now endorsed upon the indictment herein against this defendant, that he, the defendant, will be able upon 'the trial of this cause to prove the falsity of any testimony which may be given upon the trial incriminating the defendant, and will be able to impeach any witness or witnesses whoi may testify to any fact or facts incriminative of the defendant.”

The bill further shows that the indictment in this case was returned on February 7th, and shortly thereafter this motion was filed, properly sworn to by appellant, when it was overruled by the court. This was done some two weeks before the cause was set for trial, and again on March 13th, the day of the trial, the appellant renewed this motion, and it was again overruled by the court. In approving the bill the court states: “The court in this and other gambling cases thought it proper in the light of experience to refuse this request—in the interest of the enforcement of the law. This motion was filed and put on motion docket and overruled March 7, 1912, when case was called, counsel called court’s attention to this and asked if that ruling still stood, to which I replied, ‘It does.’ If they had asked it I would have, as I did in other like cases after announcement ~by loth sides, required State and defendant to furnish each other with list of witnesses.” Thus it is seen that the names were purposely omitted from the back of the indictment; that appellant timely requested the court to have the county attorney endorse their names thereon, which request was refused, and again before announcing for trial renewed the request, which the court says he intentionally refused until after an announcement of ready for trial had been made. After announcement of ready for trial, what time has a defendant to prepare his case for trial ? Article 444 of the Code provides: The attorney representing the State shall prepare all indictments which have been found by the grand jury with as little delay as possible, and when so prepared, shall deliver them to the foreman, who shall sign the same officially, and the attorney representing/ the State endorse thereon the names of the witnesses upon whose testimony the same was found. (Italics ours.) Why were those words placed in the Code ? Has a trial judge or any judge the right to ignore the law when called to his attention timely? In construing this provision of the law in upholding the hands of the officers, of the law, this court has gone far. It has held the provision directory and not mandatory, and that it does not effect the validity of an indictment; it has held that if a defendant waits until his case is called for' trial to call the attention of the court tp the failure to comply with this provision of the law, it comes too late, and will not be ground for a continuance. But we fail to find any decision of the court holding that if the request is timely made this provision of the law should not be complied with. What right has this court or any other court by construction to absolutely nullify this plain provision of the law ? To uphold the action of the trial judge in this case would render its provision absolutely nugatory and this we can not get our consent to do. It may be that this . appellant is guilty, and from the testimony adduced on this trial we are inclined to think he is, but we do not think to secure his conviction and confinement in the -penitentiary any court -has the right to absolutely override the law of the land. Our Constitution has provided that the accused “shall have the right to demand the nature and cause of action against him, and have a copy thereof,” and in Harris’ Texas Constitution, from page 85 to 89, will be found a long list of authorities upholding that provision of the law. Our Code has provided that he has a right to know the “names of the witnesses upon whose testimony the accusation and cause is founded.” These are rights given him by our law, and the courts have as much right to ignore and nullify one as they have the other, and if that day ever comes in this State, no man will be safe nor secure in his life, liberty or possessions. While the courts and all good citizens want to see the law upheld and enforced, we for one do not want to see the day come when men will be sent to the penitentiary on the testimony of witnesses of whose credibility and truthfulness the prosecuting officers have so little faith that they are afraid for their names to be known for fear that they may be debauched and bribed or persuaded to give perjured testimony. All men who commit crime should be punished and held to strict accountability, but no citizen should be deprived of his life or liberty, branded as an infamous criminal, upon testimony that comes from so questionable a source as the State is afraid if the source is known it may be polluted or proven to be polluted if given time. Without wishing or intending to reflect on any witness in this case, such conduct would raise at-least a suspicion that the State itself did not have that faith in the truthfulness and integrity of its witnesses that ought always to be manifest before another’s good name is taken from him.

In another bill of exceptions it is shown that James Eiley, a witness for defendant, had testified he was a clerk at the hotel, when the following proceedings were had:

The Court: “You say you never were up there in that poker room unless you were drinking?”

A. “As a general thing.”

The Court: “I know you well enough to know .you can understand me. Were you ever up there unless you were drinking ?”

A. “Yes, I may have been.”

The Court: “Do you know?”

A. “I have been up there and played poker.”

The Court: “Did you ever play poker?”

A. “Yes, sir.”

The Court: “Did you gamble there for money?”

A. “Yes, sir.”

The Court: “All the time you have been paying money, paying rent to Strong ?”

A. “Yes, sir.”

This witness had testified to gambling in the club room, and what object and purpose the court had in having the witness confess he gambled there while sober as well as when drunk we are at a loss to understand. But if he had stopped there we, perhaps, would hold it harmless error, but when the court emphasized appellant’s connection with the matter, it can be readily seen how harmful it would be. Wc agree with what is said in the Testard case, 26 Texas Crim. App., 260: “Wisely, we think, the law vests a trial judge with a broad, discretion— to direct and control the introduction of evidence and the examination of witnesses,” etc., but the court in so doing should never so conduct himself as to impress upon the jury his opinion as to the guilt or innocence of a person on trial. The last question propounded by the court to this witness would necessarily create in the minds of the jury an opinion that the judge thought appellant guilty.

Attached to the motion for a new trial are the affidavits of two jurymen, E. L. Greenwood and Sam E. Cannon. Mr. Greenwood swears that he had been voting for acquittal of appellant on each and every ballot, when on the second day the jury was out Mr. Cannon came to him and told him about being on the Warren Diamond jury, which failed to agree, and after the jury was discharged that Diamond entered a plea of guilty. The affidavit goes into detail and shows that Diamond was prosecuted also for operating a gambling house, and Greenwood says: “That affiant had no knowledge of the Warren Diamond case nor had he ever before that time heard of the same, but after the above mentioned statement had been made by the said juror, Sam Cannon, affiant realizing that said juror was under oath was by such statement made by said juror induced to finally agree to a verdict of conviction in this case; that said statement influenced affiant by reason of the circumstances aforesaid to agree to a verdict of conviction and affiant would not have so agreed if said statement had not been so made.” Cannon in his affidavit says what Greenwood says is true, and that he did convey him this information, and used this argument with the juryman. Each of these matters, when taken separately, may seem to be trivial in their nature, but when considered together are of that nature that no conviction thus obtained should be permitted to stand. Therefore, I concur in the opinion reversing and remanding the case.

PRENDERGAST, Judge

(dissenting). On February 7, 1912, appellant was indicted and convicted of violating our gambling law, and his penalty fixed at two years confinement in the penitentiary, which is the lowest penalty.

There are several counts in 'the indictment, only two of which were submitted to the jury for a finding. The jury, by its verdict, found appellant guilty under the second count. So that it is necessary to consider this count only in passing upon the questions raised in this case.

Said count, after the usual formal parts thereof, is as follows: “That one W. T. Strong on the 15th day of October, in the year of our Lord One Thousand Hine Hundred and Eleven, with force and arms in the county and State aforesaid, 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.”

A motion was made to quash this count of the indictment on various grounds. I think it unnecessary to state them as all of them have heretofore and repeatedly been passed upon by this court and said count in substance and in effect has been held amply sufficient. Rasor v. State, 57 Texas Crim. Rep., 10; Santos v. State, 65 Texas Crim. Rep., 518, 146 S. W. Rep., 919; Davis v. State, 151 S. W. Rep., 313; Robertson v. State, from McLennan County, recently decided, but not yet reported. And the vagrancy Act did not repeal said gambling law. Parshall v. State, 62 Texas Crim. Rep., 177.

In order to discuss and decide appellant’s other assigned errors, it is proper, if not necessary, to give at least a synopsis of the evidence.

The evidence is practically undisputed and uncontradicted on every issue in the case. Some witnesses testify to certain facts seen and known by them, while other witnesses testify to others. But practically and actually there is no contradiction and contested issues by one witness or set of witnesses testifying to a given state of facts, and another the reverse thereof. One witness may know and state more than another witness knows or states.

The building, room and place in which said gambling was alleged to have been permitted by appellant, belonged to H. L. Edwards. On May.17, 1910, Edwards, by his agent, W. Leslie Williams, entered into a written lease with appellant whereby he leased to appellant “the second and third floors of what is known as Eos. 313 and 315 Main Street, Cityr 0f Dallas, for the term of two years from the first day of January, 1.911, to be occupied as rooming purposes and not otherwise Appellant was to pay $200 per month in advance on the first of each month. This lease, among other things, expressly provides, “that no improvements or alterations shall be made in or to the hereby demised premises without the consent of the lessor in writing.” Also, “the lessee shall not assign this agreement or underlet the premises or any part thereof ... . or make any alteration in the building or premises . . . without the consent of the lessor in writing; or occupy, or permit or suffer the same to be occupied for any business or purpose deemed extra hazardous on account of fire.” Also, “that in case of default in any of the- covenants, "the lessor may declare the lease forfeited at his discretion, and his agent, or attorney shall have the right to re-enter and remove all persons therefrom.” . . .

Said Williams testified: “At the time the lease was made or shortly afterwards, I think the day after the time when the lease was made, he (appellant) asked me to change the wording in the lease in regard to the subletting of the building, and I refused, but I gave him permission verbally that he might sublet the building according to the conditions of the lease for things that were not any more hazardous by fire. I told him that it did not make any difference about him subletting the building, but that I would not release him from the lease; I told him if he did sublet it, I would look to him for the money, that I would not release him from the liability.”

The evidence, without contradiction, and without doubt, shows that for every month after said lease became effective appellant paid to the owner’s agent the $200 per month in advance as fixed and agreed in said lease and that no other person paid to the owner or his agent for him said rent at any time.

Was said building, room, or any place therein, used as a place to bet, wager and gamble with cards, or as a place where people resorted for the purpose of betting, wagering or gambling with cards?

J. D. Eobinson, who was, and for about fifteen years prior to the date of trial, in the real estate business, testified: “I know where the Astor hotel is located. I have been there. I have played two or three games up there. It was a poker game, played with cards and chips. I could not give the dates—I can give two dates, the 13th of October and the 12th of December, 1911. I think I have been there more than those two times, but I don’t remember the times. The hotel lobby is on the second floor and this was on the third floor in front. . . . The poker room was on the third floor. In order to get up in that room you go through the hotel lobby up through the hall to a stairway in the rear that led up to the gymnasium and through that into a club room and rang the béll, and somebody let you in; sometimes it was a white man and sometimes it was a negro—a negro mostly. There was. a hole through the door and through which he peeped before he would let you in. He opened the latch and looked through and opened the door to see who was there and then he closed the door. They always had two or three runners and spotters to tell you about those places.” He then testified that he sometimes went up there alone and at other times with another, but always went in the daytime. “There was every imaginable thing for manual exercise up there, and there was a pool room, and pot far from that was where the poker room was cut off. There were only two rooms up there, a big lobby room, the exercise room, and the poker room. I think they had my name as a member of that club. I never did join the club and never paid any dues as a member of the club. . . . The room that was cut off in front, where the game was, was about twenty or twenty-five feet square, with a door leading into it from the gymnasium. When I first went up there to that room I found a couple of tables and men sitting around the tables playing poker. They were round tables, fixed like poker tables usually are. They had some soft material on it and then a white cloth spread over and tied around that. . . . There was always somebody to take out every time. Yes, the take-out is the same as the kitty. Generally they had a man in the game to take off every time there was a deal, and when the pot was opened I think they took out two chips; that is, I think they took out every time, two and one chips, I believe. . . . They had five-cent chips. Yes, I think there was a fifteen-cent take-off out of ever)' pot. I think I bought my chips on every occasion from Jim Cornwell. I don’t think generally anyone bought less than ten dollars’ worth. Yes, it was a ten-dollar change-in. I saw very few people there in these poker games that 1 knew. You know, in open poker games you can’t remember who is there, they are coming and going all the time. I never stayed up there long, not over two hours or two and a half hours at any time.” . . . The witness then named five different persons whom he saw up there and played with, and said: “I could not possibly study out and remember who they all were.” He then again states that there was a take-off in every game he played and he thought Billy McNeill did the taking off. “The chips were not all nickel chips. They usually had red, white, blue and yellow chips, worth five cents, twenty-five cents, a dollar and a quarter and six dollars and a quarter, I think. I think the yellow chips were worth twelve and a half.”

Jack Ware, a druggist, who lived in Dallas, but was formerly a traveling man, and who knew appellant and said hotel and its location, testified that he had been up there and played poker in the fall of 1911. “I was let in at the door, and went there alone at first. When I got up there I knocked at the door and a porter let me in and I just went up and took out a stack of chips and went to playing poker. . . . I played poker up there several times, I don’t know how many. I stayed there several hours, I could not say positively—a good time.”

R. P. Keith, who was a city grocery salesman, formerly chief of police of Dallas, testified that he knew where said hotel was located and had been up there and played poker. lie couldn’t remember whether a negro or a white man let him in. He was not a member of any club there. “When I went in there I went over to the table where they were playing cards and I played. I never played but one time, possibly a couple of hours. I know some of the men I saw up there.” He named some persons w'ho were up there, but couldn’t remember all who were in the game; that there was a take-off. He thought Tight Boy was taking off and he couldn’t remember from whom he bought chips. He won in the game and when he cashed in, Jim Cornwell cashed the chips he won.

J. W. Blakey, who was engaged in the wholesale lumber business, knew appellant and the location of said hotel; that he had been on said third floor and played poker for money there. “I could not say how many people were there,—possibly eight or ten.” They played for chips which represented money; he didn’t know from whom he bought the chips; he usually bought five dollars worth. “I have played poker up there five or six times. The longest I ever played there was for four or, five hours, something like that.” He then named several people whom he knew that he saw playing poker up there. Others, he could not remember their names.

S. Koenigsberg, a merchant tailor of Dallas, who had known appellant for about fifteen years and had been to said hotel on the third floor, had played there prior to February 7, 1912; he couldn’t remember but one man, he named, who played. He went 'alone and surmised there was a poker game there. He bought ten dollars worth of chips from Jim Cornwell and played about thirty minutes. He went back there a month or two later, after his first trip, and played again. He was not a member of the club.

R. W. Sheegog of Dallas, and who was a printer, knew appellant for about five years, and the location of said hotel. He had been in it on the third floor about two months before this trial. “I played poker up there for money several times. I played poker up there with cards-for money several times, four or five times, 1 am not sure.” He named five other men who were up there at the time, but couldn’t think of others who were there. He bought chips from Jim Cornwell, and Cornwell cashed them when he quit. Sometimes he won, and sometimes he lost. They had a take-off in t