Thе indictment charged that appellant and Jim Rankin did unlawfully permit a game to be played with cards, and a game to be bet at and played with dice, cаlled “craps,” upon their premises and in their house, said premises and house then and there being a public place, to wit, a house for retailing spirituоus liquors. Upon the trial appellant was convicted, and fined $50.
The evidence shows that Charles Rankin was the owner and proprietor of the saloon in question, and that Jim Rankin was his bartender. Bodkin testified that in March, 1899, while he was in the saloon, standing at the bar, he saw a number of men playing a game with cards in a roоm which had been cut off from the saloon portion of the house by a pаrtition wall, having a door opening directly facing the bar. This room was proрerly part of the saloon, but had been
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cut off by a partition wall. While standing thеre, witness saw men playing cards, and also saw a crap table. No onе was playing craps at the time, but there was money on the table. Defendаnt was in the saloon at the time witness saw the parties engaged in the game with сards and at the time he saw. the crap table with money on it. There was other testimony going to show the saloon was used as a gambling room. It was also proved that defendant paid the liquor dealer’s license for the running of this establishmеnt as a saloon. It was also admited by appellant that the property was his, and that he alone was the owner and proprietor of the saloon. Jim Bankin testified in behalf of appellant that he was the brother and in the еmploy of Charles Bankin as bartender in the saloon; that he had the management and control of it, and, without asking his brother’s consent, had the room cut off by a partition wall, which he rented to one Moore; the expense attached to fixing up this room was taken out of the business funds of appellant; that he rented the room to Moore for $12.50 per month. This partition wall did not reaсh the ceiling. He further stated that Moore used this room for gambling purposes, and that he had seen men playing cards in the room; that he had not seen a gаme of craps played, but had heard the “call of the game craps,” and by that means knew that they were “shooting craps” in said room, and that his brother knew of the use of the room. Appellant asked a special chаrge to the effect that if, from the testimony, the jury believed the room where thе card playing was done, which had been rented to Dud Moore, was at the time under the control of Moore, they would acquit defendant. This charge was rеfused. We believe the court did not err in refusing the charge. The room was in the sаloon of appellant, and therefore on his premises, and it would be immаterial, under the circumstances, that the room may have been controlled for gambling purposes by Moore. Nor is there any merit in the contention thаt there was a variance between the allegation and proof in regard to ownership. The indictment charges the two Bankins with ownership. Charles Bankin wаs alone tried and convicted. There was no variance in the fact thаt the proof showed the control and ownership in appellant. They сould be thus joined and tried separately, and one convicted and the other acquitted. In this particular instance it seems the case was dismissed as tо Jim Bankin, and proceeded to trial only as to appellant. The use of the word “their” in alleging ownership, instead of “his,” does not vitiate, even if it were а single indictment against one of them. Snow v. State, 6 Texas Crim. App., 284. All crime is severаl, even when committed by two or more persons jointly. State v. Brown,
Affirmed.