Farris v. State

• Decision Date: 14 October 1914
• Docket Number: (No. 3214.)
• Citation: 170 S.W. 310
• Parties: FARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 310

FARRIS v. STATE.

(No. 3214.)

Court of Criminal Appeals of Texas.

October 14, 1914.

Rehearing Denied November 11, 1914.

Appeal from Harris County Court at Law; C. C. Wren, Judge.

Mrs. Mary Farris was convicted of keeping a disorderly house, and she appeals. Affirmed.

Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly or bawdyhouse, from which judgment she prosecutes this appeal.

Bessie Craft, Francis Gay, and other witnesses for the state were permitted to testify that appellant's husband was in the automobile business, and that he would bring men and women to the house. Appellant objected to this testimony, alleging:

"That defendant was the wife of Mr. Farris, and that the husband could not testify directly or indirectly against the wife, and that it was an attempt to admit evidence of the acts, conduct, and doings of the husband, indirectly, which could not be proven directly, and further that acts, statements, and declarations of the husband could not be used against the wife, was hearsay, inadmissible for any purpose and highly prejudicial."

Appellant was being prosecuted for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and a house where men and women met by mutual appointment for the purpose of sexual intercourse, and the fact that witnesses testify that appellant's husband brought men and women there to engage in unlawful cohabitation would be admissible testimony. The husband, of course, could not be called to give such testimony, but any person who saw the husband engaged in such acts could so testify, and it would not be the husband giving testimony against the wife either directly or indirectly. Such facts were cogent circumstances tending to prove that appellant was, in fact, keeping a bawdyhouse, and the court did not err in admitting the testimony. If the husband was thus actively engaged in aiding his wife in violation of the law, his acts and conduct in so doing could be proven, not by him, but by competent witnesses. This testimony went to show that the husband would get men and women in his automobile and carry them to the home kept by his wife, where they would enter the house and engage in the unlawful acts. Where the husband aids the wife in the commission of a crime, such fact can be shown. In a misdemeanor, all persons aiding and abetting the commission of an offense are principals, and may be prosecuted as such, and the acts testified as being committed by him, if true, would render him liable as a principal offender, and under such a state of facts his acts and conduct were admissible. Branch's Crim. Law, § 681; Cook v. State, 22 Tex. App. 525, 3 S. W. 749; Cox v. State, 8 Tex. App. 390, 34 Am. Rep. 746.

The second bill of exceptions complains of the action of the court in permitting the jury to separate after they had received the charge from the court. The facts are: The case was completed late in the afternoon, and the jurymen, not arriving at a verdict, were permitted to go to their respective places of abode for the night. This offense is a misdemeanor, and article 746 of the Code of Criminal Procedure provides that in a case of misdemeanor the court may, at its discretion, permit the jury to separate before verdict, after giving them proper instructions. It is not contended that the court did not properly instruct the jury, or that the jury was guilty of any improper conduct, the contention being that the error consisted in permitting the jury to separate; consequently there is nothing to show that the court abused his discretion in permitting the jury to separate, and, in the absence of any attempt to show improper conduct on the part of the jury, the bill presents no error.

In bill No. 3 it is...