Grant v. State , 33 Tex. Crim. 527 ( 1894 )

The charging part of the indictment reads: "Did then and there unlawfully play at a game of cards in a public place, to wit, the Commercial Union club rooms, which club room was then and there a place to which people did then and there commonly resort for the purpose of business, amusement, and recreation, and which club room was then and there a public place." Counsel for appellant moved to quash, and, the motion being denied, error is claimed. The plain meaning of the charge is that the Commercial Union club rooms was, when the cards were played, a public place or room, made so by people resorting there commonly for business, amusement, and recreation. Presented in a different way, as people commonly resorted to said room for business, amusement and recreation, said room was in fact, though not named in the statute, a public place. Being a public place by reason of the above facts, to play cards at such a room would be an offense, if that was the character of the room when the cards were played. There was no error in refusing to quash the indictment.

The statute on gaming has declared certain houses to be public houses, and the courts will judicially recognize such houses to be public places without averment to that effect; but, as to the character of houses other than those specified in the statute, the courts can not take judicial cognizance whether they are public or private, and the question is one of fact, for the decision of the jury. The term "public house," as used in the statute (Penal Code, article 356), designates a house which is commonly open to the public, either for business, pleasure, religious worship, the gratification of curiosity, and the like. Now, the question of fact in this case is, was the Commercial Union club room, at the time the cards were played, a house commonly open to the public? Had the people generally the right to visit said room? Were they permitted to resort to said room generally — ordinarily? If so, said room was a public place. It appears from the statement of facts that a number of the leading citizens of Weatherford associated themselves for the purpose of encouraging all public enterprises which were calculated to redound to the benefit of the city and county. This association was named "The Commercial Union Club." Its room or hall was situated over the Lurine building, in the city of Weatherford. Except when the club had under discussion some public enterprise affecting the general welfare of the city or Parker County, no one but its members or invited guests were permitted to visit it. Citizens of the city were not invited, the members having no authority to invite any person except visitors. No gambling of any character was permitted. Whist and euchre were played for amusement. A janitor was employed, who admitted members, and ejected all persons who were not authorized to enter. When the room was open to the public, no card playing was done or permitted. Appellant and the members frequently played euchre and whist, mainly the latter. Under the above facts, was the room, when the cards were played, a "public place," as that term is used in the statute? We are of opinion that it was not.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.