Briscoe v. State

• Decision Date: 06 June 1917
• Docket Number: (No. 4507.)
• Citation: 196 S.W. 183
• Parties: BRISCOE v. STATE.
• Court: Texas Court of Criminal Appeals

196 S.W. 183

BRISCOE v. STATE.

(No. 4507.)

Court of Criminal Appeals of Texas.

June 6, 1917.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

J. H. Briscoe was convicted of the offense of pandering, and appeals. Reversed.

Ben L. Cox, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of pandering; his punishment being assessed at five years' confinement in the penitentiary.

The indictment contains six counts, presenting several phases of the statute defining pandering. Some clause of the statute was selected and placed in these different counts. The writer deems it necessary, in view of the authorities, to discuss two propositions: First, alleged errors in the court's charge; second, admission of testimony to which exceptions were reserved.

The court in the first section of the charge copies the entire statute defining the offense of pandering, which contains a great many ways by which that offense may be committed. Quite a number of these were not charged in any count in the indictment. Exception was taken to this general statement of the court, which might not be sufficiently erroneous to require a reversal, but for the fact that the third subdivision of the charge undertakes to submit the law not applicable to the facts nor warranted by the law as applied to the indictment. It will be quoted:

"Now, if you believe from the evidence beyond a reasonable doubt that the defendant, J. H. Briscoe, on or about October 23, 1916, the date alleged in the indictment, in the county of Taylor and state of Texas, procured, or attempted to procure, or was then and there concerned in procuring, Beatrice Briscoe, a female, or by abuse of his (the said J. H. Briscoe's) position of confidence and authority, or by any of the means or methods set forth above, in paragraph numbered 1, of this charge, defendant caused Beatrice Briscoe to enter or remain in a place or house where prostitution was then and there encouraged or allowed, you will find him guilty of pandering as charged in the indictment, and assess his punishment," etc.

It will be seen that, in thus authorizing the jury to convict, they were told that if appellant, by any of the means set out in subdivision No. 1, which contained all the definitions of pandering, caused Beatrice Briscoe to enter or remain in a house where prostitution was encouraged or allowed, he would be guilty. The exception is well taken. The court is not authorized to submit any theory of the law for conviction, except as charged in the indictment and supported by the facts. Many of those clauses were not charged in the indictment, and, had they been charged, the state did not even attempt to prove many of them; at least, if the state did, the evidence is not incorporated in this record. The facts relied upon by the state substantially show that appellant and his wife lived in Abilene, prior to the alleged offense, in a home of their own, a private residence; that on or about the 23d of October a man whose name is Fee had a conversation with the defendant with reference to finding a loose woman. He testified that appellant conveyed him within a block of his (appellant's) house, where Mrs. Briscoe lived, and pointed to the house, putting him out of his auto at that point; that he (Fee) went to the house and had intercourse with appellant's wife, paying her a financial consideration. Later, without appellant's connivance, Fee took one or two others to the house, and they had intercourse with Mrs. Briscoe. There is some evidence that that house sustained the reputation of being one of ill fame, and there is evidence, also, that Mrs. Briscoe sustained the reputation of being of loose virtue.

Appellant's case was the converse, and under this state of case the jury was authorized by the court's charge to find appellant guilty, if he did any of the acts set out in the statute. That statute provides, if any person shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, or who by promises, threats, violence, or by any device or scheme, shall cause, induce, persuade, or encourage a female person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a female person, or person who shall by promises, threats, violence, or by any device or scheme, cause, induce, persuade, or encourage an inmate of a house of prostitution to remain therein as such inmate, or any person who shall by fraud, or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed in this state, or to come into this state, or to leave this state, for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill fame within this state, or who shall give, or agree to receive or give, any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state, or to come into or leave this state, for the purpose of prostitution, shall be guilty of pandering. Many of these things, as before stated, were not charged in the indictment, and there was no evidence introduced, or sought to be introduced, that undertook to sustain many of these clauses of the statute; yet the court authorized a conviction for a violation of any of them though not charged in the indictment. This is reversible error.

There is another proposition in the case that will require reversal. Appellant's wife was used as a witness by the state. She did not testify as desired for the state; in fact, her testimony would show that her course of conduct, while illicit, was secret and hidden from appellant, that he knew nothing about it, and that, while sometimes he was jealous, she was able always to persuade him of the fact that she was virtuous, and his suspicions were not justified. Before moving to the county of Taylor, to the city of Abilene, he became sufficiently jealous of her on one occasion to kill a party. This killing occurred in a different section of the state. After appellant was arrested, she went to the courthouse with a view of visiting her husband in jail. The officers took charge of her, and told her they were going to put her in jail, and perhaps did so. While in their custody, and under their influence and control, she made a written statement before a justice of the peace, which was duly signed and made into the form of an affidavit. In this affidavit her statements would show that appellant was guilty of pandering, and permitted, if not procured, her to sell her body for the purpose of gain. This statement was made in October, 1916. On the 7th of March following she wrote the district attorney a letter to the effect that her affidavit was false, and she would not testify as therein stated. Her letter to the district attorney is as follows:

...