The opinion
On Motion for Rehearing.
HAWKINS, J.
In his motion for rehearing appellant insists that the sixth count in the indictment under which he was convicted is a substantial copy of the charging part of the indictment in Francis v. State, 90 Tex. Cr. R. 67 , 233 S. W. 974 , which was held to charge the commission *614 of a misdemeanor only. If appellant be correct, of course, this conviction could not stand, the conviction being for a felony. We think appellant misconstrues the Erancis opinion. The indictment in that case and in Deisker v. State, 89 Tex. Cr. R. 467 , 233 S. W. 978 , were drawn .under then article 572, P. C. (now article 628, P. C. (1925), and charged that accused permitted gaming in a house under his control, which offense is a misdemeanor. The indictment in the present case is drawn under combined articles 625 and 627, P. C. (1925), formerly article 559, P. C., and charges, in substance, that appellant permitted a house under his control to be used as a place for the purpose of gaming; in other words, that he permitted such house to be used as a gambling house. In Fridge v. State, 90 Tex. Cr R. 75, 233 S. W. 979 , will be found an indictment like the one in the present case and which was held to charge a felony. The Francis, Deisher, and Fridge Oases were decided at the same time. Brown v. State, 96 Tex. Cr. R. 409 , 254 S. W. 495 , 257 S. W. 891 , follows the Fridge Case. See, also, Bowman v. State (Tex. Cr. App.) 33 S.W.(2d) 439 .
The motion for rehearing is overruled.