Cabiness v. State

• Decision Date: 10 April 1912
• Parties: CABINESS v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W. 934

CABINESS v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1912.

On Motion for Rehearing, May 8, 1912.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

F. M. Cabiness was convicted of keeping a bawdyhouse, and he appeals. Affirmed.

Andrews, Ball & Streetman, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On September 26, 1910, the grand jury of Harris county indicted appellant, charging that on or about August 25, 1910, in said county, he "did unlawfully keep and was concerned in keeping a certain house then situate as a bawdyhouse, and as a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation." He was convicted, fined $200 and 20 days in jail.

The court, in charging the jury, correctly stated the offense and defined a bawdyhouse, and then required the jury to believe, beyond a reasonable doubt, that on or about the time charged the appellant did "keep a bawdyhouse, or was concerned in keeping a bawdyhouse, as that term has hereinbefore been explained to you," to find him guilty, etc. The prosecution was had under article 500, P. C. (new). The indictment clearly and properly charged the offense in the conjunctive form. The court correctly submitted the question in the disjunctive form.

There is no bill of exceptions in the record. Neither is there any bill of exceptions to the charge of the court in any particular; nor was any special charge requested on any subject. It has been the uniform holding of this court for many many years that in misdemeanor cases, as this is, this court cannot and will not consider any objections to the charge of the court, unless bills are taken at the time the charge is given, and special charges requested covering the point, and bills taken at the time to the refusal of the court to give such special charges. Hence we cannot consider any of appellant's objections to the charge of the court for the first time, and only made in the motion for new trial. Basquez v. State 56 Tex. Cr. R. 330, 119 S. W. 861; section 813, subdiv. 6, White's Ann. C. C. P., p. 533, for collated cases.

The evidence showing the appellant's guilt is ample, clear, and convincing. Appellant's claim, in his motion for new trial, of newly discovered evidence in no way meets the requisites therefor prescribed by law.

We have carefully considered the record and appellant's brief and authorities cited by him, and are of the opinion that no error is shown that would authorize or permit this court to reverse the case.

The judgment will therefore be affirmed.

On Motion for Rehearing.

It is but just to appellant's attorneys to state that they did not represent him in any way in the lower court; but he was represented by another attorney altogether. It seems that his attorneys in this court had no connection with the case until after, not only the trial in the court below, but the preparation of the record too.

In effect, the appellant in this court raised but two questions: First. He claims the evidence is insufficient to sustain the verdict; and, second, that the indictment is fatally defective, because duplicitous. He seems to insist that this court neither considered or passed upon either of these questions in the original opinion. He is mistaken in this. On the first question in the original opinion, we said: "The evidence showing the appellant's guilt is ample, clear, and convincing." On the other question, we said: "The indictment clearly and properly charged the offense in the conjunctive form. The court correctly submitted the question in the disjunctive form." We did not then deem it necessary to give the evidence, or discuss at any length the said questions raised. In view of appellant's vigorous and forcible contentions on both of these points, we have concluded to again take them up and review them more fully.

First, as to the sufficiency of the evidence. The undisputed evidence shows, and the appellant himself testified, that he owned a large 2-story, 14-room house at No. 503 Rusk avenue, in the city of Houston, Tex.; and that he ran and operated this house at the time the offense is charged to have been committed, on or about August 25, 1910.

Mrs. J. C. Plummer, for the state, testified: "I live at No. 510 Rusk avenue. My place is almost directly across Rusk avenue from the house of F. M. Cabiness. I know the reputation of the house that was occupied by the defendant during the month of August, 1910. I know what its reputation was at that time; the reputation was bad. It had the reputation in that neighborhood of being a bawdyhouse. I complained to the chief of police about the place. I saw cabs come up to the house during all hours of the night and day. Women rode in these cabs; men rode in some; and in some men and women together. They went into the Cabiness house. There was much loud talking and cursing. I saw people go to and from the house at all hours of the night, and saw them carrying beer in the house. After I made the complaint, Cabiness, the defendant, came to me and acknowledged that it was a house of prostitution; and he said that he could not make a living by keeping respectable people there.

Cross-examination: "I have known the defendant for several years. I knew him while his wife was living. When she was living, the house was all right, as far as I knew. I went over there when his wife died and helped them. I know there was one or two women living in the house. I do not know whether there was one or two women living in the house. I do not know whether there was a dressmaker in the house or not; there was a sign on the house which said, `Dressmaking.' I know that Cabiness did not put the women out of the house; the officers put them out."

Mrs. J. Mellinger, for the state, testified: "I live at 718 Brazos street. The front of my house is just across Brazos street from the Cabiness house, His back gate, or side gate, is almost directly in front of my house; he lived there during the month of August, 1910. I know the reputation of that house during that time; it was bad. Its reputation in that community was that of a house of ill fame, a bawdyhouse. I saw automobiles and hacks driving up to the Cabiness house at all hours of the day and night, bringing men and women. These people were noisy and boisterous, and my sleep was disturbed by the disorder at that house. After the complaint was filed against Cabiness, he came to me and begged that the prosecution be withdrawn, and admitted that he had women of bad character in his house. He promised to conduct the place more orderly, and to get the women out of his house. He did not do this. They stayed there several weeks, until the chief of police put them out."

Cross-examination: "It is not a fact that Mr. Cabiness came to me and told me that he did not know the character of the women at the time he took them in, but that he would put them out at once; he did not put them out at once. Things continued pretty much the same, except that the hacks stopped at the back gate, instead of at the front gate. I knew the defendant's wife died about a year ago. I heard no complaint of the house prior to her death. The defendant told me that he would prolong this trial from time to time and wear us out coming to court. It is awful that we have to come."

A. S. Caldwell, for the state, testified: "I know F. M. Cabiness, the defendant in this case. I know that he was the owner of the house at 503 Rusk avenue in August, 1910. We sold the place to him, and he is paying for it in regular installments. He was the owner of the place in August, 1910. This house is located in Houston, Harris county, Texas."

George Peyton, for the state, testified: "I had occasion to investigate the house at 503 Rusk avenue. I saw Cabiness there. I visited the house on two or three occasions. F. M. Cabiness had control of the premises. I found in the house a woman, named Lottie Davis, whom I knew to be a common prostitute; she said she lived there. Her mother, named Davis, was also in the house. The reputation of the elder Davis woman was bad. Cabiness promised to get these women out of the house; but he failed to do so, and did not put them out, until finally I, together with the chief of police, went out and put them out."

The appellant thereupon introduced his testimony. Judge Kittrell, judge of the Sixty-First district court, testified that he knew the appellant in Walker county and his family for years; was at school with his brother at Huntsville. He knew his reputation in Walker county before his removal to Houston. It was good, and that of a law-abiding citizen; and he was surprised that he had been charged with running a bawdyhouse. On cross-examination, he said he knew nothing about the house that defendant had been running in Houston, and that he had not been intimately associated with him during the four or five years that he had been there.

Mr. Williams, for him, testified that he knew appellant for some years at Huntsville, and had seen him in Houston, soliciting people at the depot to stop at his house. He had given him (the witness) one of his cards, on which was printed, "Furnished rooms." He knew the reputation of the defendant, and it was good. Never knew him to have been charged with any offense.

Judge Robinson, the judge of the criminal district court, before whom this case was tried, for him, testified that he knew the appellant and his family a number of years in Walker county and for some time in Houston. He met him at the depot a...