Dailey v. State

• Decision Date: 21 February 1900
• Parties: DAILEY v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

55 S.W. 821

DAILEY v. STATE.¹

Court of Criminal Appeals of Texas.

February 21, 1900.

Appeal from Mitchell county court; J. E. Hooper, Judge.

Mrs. E. J. Dailey was convicted for keeping a disorderly house, and she appeals. Affirmed.

Earnest & Shepherd, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for keeping a disorderly house, and her punishment assessed at a fine of $200. A continuance was sought for the testimony of Mary Davidson, who was alleged to reside in Tarrant county. The indictment was returned on May 24th, and filed in the county court the following day, under an order of transfer from the district court. Process was issued on the 1st of July, and it was returned not executed on the 12th of July. It was expected this witness would swear that she was a servant in defendant's house from November 1, 1898, to April 1, 1899, and from November 15, 1897, to April, 1898, and during these periods she never saw any acts of prostitution committed in defendant's house. She was constantly about the house, and "it would have been well-nigh impossible for such acts to have been committed without witness' knowledge; that during said period defendant's house was not a place where prostitutes were permitted to resort or reside, and that no women of bad reputation for chastity were permitted in the house." The testimony is negative in its character, and states conclusions, rather than facts. It will be noted further that this testimony only covers a portion of the time in which this offense may have been committed. We are of opinion the testimony is not probably true, because the evidence adduced on the trial shows the house had the general reputation of being disorderly in the sense in which that term is used in the statute; that such was the character of the inmates. In fact, it was proved that prostitutes did reside in the house. The continuance was properly refused.

During the trial, counsel for both sides "were making objections and wrangling over testimony to such an extent that the whole progress of the court was interfered with; at which point defendant's counsel, M. Carter, objected to a question asked witness. The court overruled the objection, and directed the county attorney to proceed; when said Carter again objected, stating that he was trying to prove `so and so.' The court then said: `You will be seated, Mr. Carter. You will not let us prove anything.'" Appellant excepted because it was calculated to influence the jury. The court certainly had the right to keep order during the trial and prevent unnecessary wranglings and objections, and to require attorneys to be seated. If this is the portion of the remarks to which this objection relates, there certainly can be no merit in it. The whole statement is objected to without pointing out which portion of it is objectionable. But, if the remainder of the sentence is objected to, we believe the court should not have used the remark, but it was not a comment upon the testimony, and was hardly calculated to influence the jury against appellant.

Appellant filed a motion to set aside the indictment because, as alleged in the motion: "After the list of grand jurors for the May term of the district court, which found this indictment, had been summoned by the sheriff of Mitchell county, and return made by him, which return was made in the order in which said names were drawn by the jury commissioners, the district judge took said list...