¶1Appellant was indicted, under Article 2044, Paschal’s Digest, for playing “ at a game with cards at a house for retailing spirituous liquors.” The evidence shows that the house in which the playing took place, while it was situate upon the same lot with an establishment used for retailing spirituous liquors, was yet in noway a part of the latter, or connected with it. It was over forty feet distant from the liquor saloon, was not rented or controlled by the proprietor of the saloon, and was accessible to the public without the necessity of going through the saloon. The evidence fails to establish the charge in the indictment. Holtzclaw v. The State, 26 Texas, 682. See, also, Robin*512son v. The State, 24 Texas, 154, and Galbreath v. The State, 36 Texas, 200.
¶2The court erred in overruling the motion for a new trial, which was based in part upon the ground that the verdict was contrary to the evidence.
¶3The judgment is reversed and the cause remanded.
¶4Reversed and remanded.