J. N. Bosshard v. The State of Texas.
Bosshard was indicted under the 419th article of the Penal Code, which reads as follows: “If any person shall permit any game, prohibited by the provisions of this chapter to be' played in his house, or a house under his control, he shall be fined not less than $10 nor more than $100.” An indictment which charged the offense of permitting the playing of euchre and other games of cards at his grocery, being a public place, in the language of the statute, 'was sufficient, without averring that money was bet. (Penal Code, art. 411; Paschal’s Dig., Arts. 2044 to 2046, Notes 640 to 642, p. 432.)
An indictment may be amended, by inserting the court in which it was found, since the 488th article of the Code of Criminal Procedure regards that as mere form. (Paschal’s Dig., Art. 2955, Noté 735.)
Art. 508 of the same Code authorizes the amendment of an indictment where an exception to it merely on account of form is sustained. (Paschal’s Dig., Art. 2977.)
It is not necessary to state anything in an indictment which need not be proved. (Code of Criminal Procedure, art. 396; Paschal’s Dig., Art. 2864, Note 721, p. 510.)
Appeal from Bexar.—The case was tried before Hon. Edmund J. Davis, one of the district judges.
Bosshard was indicted for permitting the playing of a game of cards called “euchre” at his tippling-shop, called a public place, as stated in the opinion. The defendant moved to quash, upon the grounds, that there was no such offense known to the law as is charged in the indictment; that it was not charged that anything was bet upon the game; because the act on which the indictment was found was contrary to the 24th section of the 7th article of the constitution; and because it does not appear that the court had jurisdiction. The motion was overruled; the district attorney having been permitted to insert the word “ court,” so as to-make it read “District Court,” in the first line. The accused then plead “ not guilty.” The playing at “ euchre” in the “bar-room” and back yard of the accused was proven, as well as the public character of the liquor-shop. The judge charged the law upon the 419th *208article of the Penal Code. The jury found the defendant guilty, and assessed a fine of $10, from which he appealed, and assigned for error the several rulings and instructions.
Wilcox Leigh, for appellant.
—I. It is insisted that the act under which the indictment was found is unconstitutional.
1st. Because the act of February 12, 1858, of the Penal Code, repealing the proviso to article 411 of the Penal Code, is contrary to, and in express violation .of, the 24th section of article 7 of the constitution of the State. (See O. & W. Dig., p. 25; Paschal’s Dig., p. 67, Note 199.).
2d. For the reason of its uncertainty: “mimicipal law being a rule of civil conduct prescribed by the supreme power in a State, commanding what is right, and prohibiting what is wrong.” How, in order to do this completely, in the language of 1 Blackstone, (Chitty’s ed., p. 35,) it is, first of all, necessary that the boundaries of right and wrong be established and ascertained by law. (See Blackstone farther as to the declaratory and directory parts- of a law, on p. 36 of the volume above alluded to.)
II. It is contended that the court had no jurisdiction of the cause until the amendment was permitted, and that the court had not the constitutional right to permit an amendment of an indictment. (See sections 8 and 21 of art. 1 of Bill of Eights; Paschal’s Dig., pp. 48, 51, Hote 162.) For the requisites and sufficiency of an indictment, the court is referred to art. 395 of the Code of Criminal Procedure, (O. & W. Dig., p. 614.)
George Flournoy, Attorney General, for the State.
—The defendant was indicted on art. 419,"Penal Code, (O. & W. Dig., p. 507.) The indictment is good; and the court below did not err in permitting the amendment, by inserting the word “ court” after the word “ district” in said indictment. It was the correction of a mere clerical omission.
*209The point chiefly relied on for a reversal is, that the repeal of the proviso to art. 411 of the Penal Code is unconstitutional. We shall not occupy the attention of the court with the examination of this question.
The “statement of facts” does not show any evidence that “no money was bet on the game,” nor does the record disclose that any effort was made to disclose such evidence. The charge of the court under the facts would have been the law, with or without said proviso.
Bell, J.
—The indictment is founded upon art. 419 of the Penal Code. That article provides, that “if any person shall permit any game, prohibited by the provisions of this chapter, to be played in his house, or a house under his control, he shall be fined not less than $10 nor more than $100.” The indictment in the case before us charges, that the appellant did permit divers persons to play with cards, at the game of euchre and at divers other games with cards, at a house then and there kept, and under his control, for retailing spirituous, vinous, and malt liquors; the same house being a public house where people resort., The indictment clearly defines the offense which art. 419 of the Penal Code prohibits. The exception, therefore, that the indictment did not describe any offense known to the law, was properly overruled by .the court.
The court did not err in permitting the indictment to be amended for a defect of form merely, such as the insertion of the word “court” after the word “district” in the first line of the indictment. Art. 488 of the Code of Criminal Procedure expressly treats that portion of the indictment which shows in what court the indictment is presented as form, and not matter of substance. Art. 508 of the Code of Criminal Procedure authorizes the amendment of an indictment, where an exception to it merely on account of form is sustained by the court.
The exception to the indictment, because it did not *210charge that anything was bet upon the game described in the indictment, was properly overruled by the court. Art. . 411 of the Penal Code provides that, in prosecutions like the present, it shall not be necessary to prove that any money, or article of value, or the representative of either, was bet at such game; the offense being complete without such proof. It not being necessary to prove that anything was bet on the game, in order to make out the offense, it was equally unnecessary to allege in the indictment that anything was bet; because art. 396 of the Code of Criminal Procedure provides, that “it is not necessary to state iri an indictment anything which it is not necessary to prove.”
The verdict of the jury was in accordance with the evidence, and the judgment of the court below is
Affirmed.