Cochran v. StateCochran v. State
- Reporters:
- Before:
- Mooee
The exceptions to the indictment were propеrly-overruled. The only one of them which seems entitled to notice,, or upon which counsel have insisted in this cоurt, is that which alleges a want of sufficient certainty in the indiсtment, because it does not allege the charаcter of the liquor sold, to whom it was sold, nor the place where it was sold. The principle involved in this excеption, has been fully settled by former decisions of this court. The case of Prior v. The State, 4 Tex., 383, decides that it is not necessary, in an indictment for playing cards in a house fоr retailing spirituous liquors, to state the name of the oсcupant of the house. In Sublett v. The State, it is said, that such аn indictment need not contain any allegations for the purpose of identifying the particular place in which the playing is charged to have been done. And Hоran v. The State holds, that an indictment for permitting “cards tо be played in his house, said house being then and there situаte in the county aforesaid, and kept by the said Horan for retailing spirituous liquors,” is sufficiently certain, although it was оbjected, that neither the particular-game that was played, or the house in which it was played, were pointed out by it. The code declares, (Art. 396, Code Crim. Pro.,) that “it is not necessary to state in an indictment, anything which it is not necessary to prove.” This indictment con*681tains all the ingredients of the offence given in the code, and all that the State was required to prove. It has all the requisitеs-that the code of criminal procedure enumerates, to constitute a sufficient indictment. As was said in the сase last referred to, the certainty prescribed for an indictment, docs not require so minute a descriрtion of the offence, as to entirely supersedе proof of its identity, when the judgment is pleaded in bar to а second prosecution.
The charge of the сourt was correct, and the evidence .was. amply sufficient to sustain the verdict. That appellant’s witnessеs did not hear the statement made by the witness for the State, when he purchased the liquor, by no means shows that the transaction did not occur as detailed by Mm. If, however, thе witness had gotten the liquor without requesting that it should he charged to him, the other facts fully warrant the conclusion that it was sold. Appellant kept liquor to sell in quantities of a quart or more; the witness and others were in the habit of purchasing it of him. The only reasonable presumption would bе, that appellant let the witness have it as a purchaser. It is also to be presumed, that he permitted it tо be drank in his house. Every man has the right, and is supposed to control Ms premises; and wh$n an act is done in his house during his prеsence, without any effort on his part to prevent it, it must be inferred that it was done with his consent. As there is no error in the. judgment, it is affirmed.
Judgment affirmed.