Adams v. State, 16656.

• Decision Date: 20 June 1934
• Docket Number: No. 16656.,16656.
• Citation: 72 S.W.2d 912
• Parties: ADAMS v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W.2d 912

ADAMS v. STATE.

No. 16656.

Court of Criminal Appeals of Texas

June 20, 1934.

Commissioners' Decision.

Appeal from Hays County Court; W. M. Burnett, Judge.

Nicolas Lopez Adams was convicted of keeping a bawdyhouse, and she appeals.

Judgment reversed, and cause remanded.

Geo. W. Edwards and Tom C. Johnson, Jr., both of San Marcos, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is keeping a bawdyhouse; the punishment, a fine of $200 and confinement in jail for twenty days.

It is now made to appear by supplemental transcript that the complaint is in proper form. The opinion heretofore rendered reversing the case and ordering the prosecution dismissed is withdrawn, and the following substituted in lieu thereof:

Bills of exception 21 to 29, inclusive, show that the state proved by several witnesses that appellant's reputation for virtue and chastity was bad. Appellant had not placed her reputation in any respect in issue. She did not live in the houses alleged to have been occupied by prostitutes, but resided in another house with her husband. There was no evidence that the house in which appellant resided was a bawdyhouse, and no proof that appellant plied the vocation of a prostitute. Appellant's objection to this testimony should have been sustained. We quote from Gamel v. State, 21 Tex. App. 357, 17 S. W. 158, as follows: "As shown by the defendant's second bill of exceptions, the prosecution was allowed to prove, over objection, the defendant's general reputation for want of chastity. In Allen v. State, 15 Tex. App. 320, it is said: "The bad character of the prisoner is entirely immaterial in the first instance in determining whether he was the keeper of the house;' and it was held that a defendant could not be held liable as the keeper of a disorderly house by evidence of common reputation as to his character. The indictment is for keeping a disorderly house, not the keeper's character for being a common prostitute, or having a reputation for want of chastity. Such evidence was not admissible, because it did not tend to prove the issue to be tried. Burton v. State, 16 Tex. App. 156."

We are aware of the holding in Dailey v. State (Tex. Cr. App.) 55 S. W. 823. There it was held proper on a trial for keeping a disorderly house to prove that the accused bore the reputation of being a common prostitute. It is not shown in the opinion in Dailey Case whether or not the accused was an inmate of the house. The decision in Gamel v. State, supra, is controlling in the present case.

A witness testified in effect that it was well known that appellant conducted a bawdyhouse. This testimony was inadmissible.

Upon another trial an election between transactions should be required. The state's proof was to the effect that appellant conducted more than one bawdyhouse. The complaint and information contained one count. We quote from Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957, 959, as follows:

"Where an indictment or information contains but one count, charging a misdemeanor, our decisions are not clear whether or not the state...