Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 8
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15-16 SUPREME COURT.
Harris v. The State.
which count lie was convicted. The verdict being general, can be imputed to
either or both; and tlhe charge assigned as erroneous having no'relation to tile
first count, must be disregarded, as irn the case of Chandler v. The State, decided
at the last term of tlhe corlt. They lave in nowise shown that the verdict was
unsupported by the evidence, to convict him of the offense charged in the first
count. They do not show that he was convicted on the second count alone.
So that event if the charges were all erroneous, the conviction must stand.
LIPSCOMB, J. The indictment in this case was under the 9th section of the
act of 1840 to suppress gaming. Tlhe section is as follows: " That if any person
shall permit any banking game or such as are inhibited by the third section
of this act to be kllpt in his or her house, or shall rent a room for this purpose,
lie or slle slall sulfer the same punishment as tlose convicted of keeping such
banks." It miust be obvious to every one that, by a fair construction of the
lanlgu:age of the law, a knowledge of the fact forbidden by the law is a constituent
ingredient in the ofllase. It is difficult, if not impossible, to conceive
of any definite meaning to the word permit. without carrying with it a
knowledge of the thing permitted. If one is ignorant of the existence of a
fact, it could with no propriety be said that hle permitted it. If, however,
there is no evidence of a positive permission, secondary evidence can be resorted
to. Tliere may be no positive evidence of an express permission from
the master of tlie house that things forbiddlen by law have been done andl
transacted in his house; but if it is proved tlat he witnessed the transaction, it
would be an implied permission to do the act if lie did not prevent its recurrence
and immediately put a stop to it. Again, if his house was small, the
presumption would be strong tliat lie knew of what was going on in it. If,
however, [16] it contained fifty or one hundred apartments, occupied by
boarders, the presumption would be mucl weakened of his knowledge of what
might be dole by boarders in those apartments. But if the presumption of
knowledge of tle transaction ihas been created, all the circumstances in rebuttal
of such presumption should come froin the palty against whom it Ihas been
raised. On the trial of an ind(lictmelit, like the trial of all otiler facts, the best
evidence the nature of the case admits of must be produced to establish the
charges contained in it. On the question presented by the charge onl the first.
count there can be no difference of opinion, but that express permission would
be the best evidence ill support of the charge contained in this count; but if
this could not be procured, solen fact ougrllt to be shown from which such permission
mLay be fairly inferred. When this has been done the prosecution has
made out a prima fla:ie case, which will stand as proved if not rebutted. If it
were proved that the defendant lived in or occupied the house, from such fact,
as before stated, the presumption would arise that if a faro bank was kept or
exhibited in a house so in his possession it was within his knowledge, and
unless rebutted would be enloghl to sustain the charge. But I cannot believe
that the mere fact of ownership of the house, without possession according to
the ordinary transactions of the business of life, would necessarily raise tlat presumption,
because the owner might be in possession of the house he so owned.
It might be in the possession of a tenant, and the owier know nothing about
what was done in it. If the defendant was in possession, whether as owner,
tenant, or as a trespasser, it would be "his house" within the mea-nilng of the
law. believe therefore the court erred in the charge given on the first count
in the indictment.
On the second count: It seems to me that the charge asked to be given was
precisely within the terms of the law; that it was necessary, to sustain the
prosecution under the second count, to prove facts showving that the defendant
rented [1T] the house charged in the indictment, for the purpose of keeping a
faro bank. I believe the court oughllt to have given the charge as asked; and(
it would certainly have been proper for the court to have furthlle explained
what would be evidence of a knowledge on tlhe part of the plaintiff that the
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/16/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .