The opinion
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MARTIN, Judge.
The offense is that defined by Art. 625, P. C.; penalty, two years in the penitentiary.
The indictment in this case is under attack. Without its formal parts it reads:
“George Musey alias B. Brown alias W. B. Brown on or about the 2nd. day of January A. D. one thousand nine hundred and twenty nine, and anterior to the presentment of this indictment in the County of Galveston and State of Texas, did then and there unlawfully keep and was interested in keeping a room not a private residence occupied by a family, for the purpose of being used as a place to bet and wager .and gamble with dice, and as a place where people did then and there bet and wager upon games played with dice.”
Appellant contends in substance (1) that the above indictment fails to allege the county in which the offense was committed, and (2) that it is duplicitous in that more than one offense is therein alleged. An indictment in practically this identical language has been many times held sufficient. Fridge v. State, 90 Tex. Crim. Rep. 75; Polk v. State, 69 Tex. Crim. Rep. 53; Rasor v. State, 57 Tex. Crim. Rep. 10; Harvey v. State, 92 Tex. Crim. Rep. 645. The indictment is regarded as sufficiently alleging venue. Nor is it duplicitous in our opinion. While it alleges that appellant kept and was interested in keeping a room for the purpose of being used as a place to bet and wager and gamble with dice, these are but different phases of the same criminal act, embraced in the same general definition, punishable in the same manner and are not repugnant to each other and may therefore be charged conjunctively in the same count. Branch’s P. C., Sec. 508; Copping v. State, 7 Tex. Crim. App. 61; Gage v. State, 9 Tex. Crim. App. 259; Johnson v. State, 171 S. W. 212 .
The verdict found the appellant guilty as charged and it is claimed that this rendered it uncertain and indefinite because the indictment itself was duplicitous, uncertain and indefinite. What has been said above disposes of this contention, since if the indictment was not invalid in the respects claimed by appellant, the verdict which followed it could not be.
• It is alleged on motion for new trial that the jury, after its return and before the verdict of guilty was reached and while the jury were divided as to the guilt or innocence of appellant, received other testimony. Evidence was heard on this allegation and the Court qualifies appellant’s bill with a finding, the effect of which
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is that one juror said to another in an informal conversation while not considering their verdict and while not in the regular jury room that there must be lots of gambling around Galveston “because several tables have been made down at the shop where I am working.” According to the Court’s finding this was a casual remark shown to have been heard by only one juror at a time and under circumstances which could not have injuriously affected appellant’s rights. It was not a discussion of the case on trial nor was appellant connected in any way in such remark with any gambling. Appellant received the minimum penalty provided by law. Under these circumstances we are of the opinion that the Court properly overruled appellant’s motion for a new trial. Honea v. State, 103 Tex. Crim. Rep. 242; Whitfield v. State, 104 Tex. Crim. Rep. 95; Purcell v. State, 104 Tex. Crim. Rep. 633; Henderson v. State, 104 Tex. Crim. Rep. 495.
Other bills of exception are so qualified as to show no error.
The evidence shown in the record is regarded as sufficient to support the conviction and its recital would serve no useful purpose.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.