Cole v. State, 28 Tex. Ct. App. 536

28 Tex. Ct. App. 536 | Tex. App. | 1890

White, Presiding Judge.

The charge as set forth in the indictment was that defendant did, etc., “play at a game with cards at a certain public house, to-wit, a certain school house on Stepp’s Creek, in said county and State, commonly open to the public for educational purposes, and business connected therewith, and where people did then and there resort for the purposes aforesaid, and for the purpose of business, recreation, and amusement, and said house being then and there a public place,” etc.

The evidence fully established that the house where the playing took place was a school house, built by the public, and used for educational purposes. But the playing was done on a Sunday, and not on a day when the house ivas used by the public for educational purposes. It was objected by defendant that the State was allowed to prove that said school house was also used for religious worship, and that religious services were held there on the day of the card playing, the objection being that it was incompetent to give the house a public character by proving it was put to other uses than those alleged in the indictment.

The term “public house,” as used in the statute (Penal Code, art. 356), signifies a house commonly open to the public either for business, pleasure, religious worship, the gratification of curiosity, and the like. The State v. Alvey, 26 Texas, 155. The term “public house” is generic in its character, and is intended by law to include all houses made public by the occupation carried on in them, as inns, taverns, store houses for retailing'liquors, or those made public by the resort of numerous persons, or in any other way. The State v. Barnes, 25 Texas, 654. A school house is such a public house, and the fact that at times it is not temporarily occupied as such, or that may be occupied temporarily for other than school purposes, does not, when temporarily vacant or when so occupied for other purposes, make it any the less a public house during the time it is actually dedicated to school purposes as such.

If the house was being occupied during the week for school purposes, it was none the less a public house on Sunday, whether occupied at all, or whether used on that day for religious services.

The evidence complained of in the bill of exceptions was immaterial, there being abundant testimony that at the time of the playing the house was a school house, occupied, used, and resorted to as such.

There were no exceptions to the charge of the court, nor to the refusal of the defendant’s special requested instructions, and the case being a misdemeanor, in the absence of exception the charges will not be revised. Loyd v. The State, 19 Texas Ct. App., 321; Comer v. The State, 26 Texas Ct. App., 509.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.