Smith v. State

• Decision Date: 03 December 1913
• Citation: 162 S.W. 835
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 835

162 S.W. 835

SMITH v. STATE.

Court of Criminal Appeals of Texas.

December 3, 1913.

Rehearing Denied January 14, 1914.

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

Emma Smith 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 house, a house where men and women met by mutual appointment for the purpose of sexual intercourse.

The term of court at which appellant was tried adjourned July 5, 1913. No order was entered of record authorizing a statement of facts and the bills of exception to be filed after term time. This being a misdemeanor conviction, the Assistant Attorney General has filed a motion to strike out the statement of facts and bills of exception. At the request of appellant's counsel, time was given him to perfect the record if same could be done. Since that time papers have been filed wherein the county judge states he remembers that he gave a verbal assent to an extension of time, but that no order was ever entered on the docket of the court, nor in the minutes of the court. Why, in criminal cases, as well as in civil cases, counsel will not prepare and see that the orders and judgments are properly entered in the minutes in their cases, we fail to understand. This verbal order, if made prior to the adjournment of the court for the term, is not a part of the record in this case. In the case of Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566, and s. c., 61 Tex. Cr. R. 340, 135 S. W. 568, the power of the court to enter nunc pro tunc orders after an appeal has been perfected was discussed, and the decisions of the court all hold that trial courts cannot do so, and, if the order does not appear of record, we cannot consider these matters. As stated in that opinion, if the question was an open one, the writer would individually be inclined to a different view; but, in rules of procedure where there has been a settled construction of our statutes, we have followed the established rule, and, under the showing made in this case, the motion of the Assistant Attorney General must be sustained. However, were we to hold otherwise, the record as made would present no error.

The only bill of exception in the record, while rather incomplete, yet if we take it in connection with the statement of facts, would present this question: A witness testified that Ollie Link was a frequent visitor at appellant's home; that they had seen her come on one street car and enter this house; that on the next car a man would come and enter the house, and after they had remained there awhile they both would leave; that Ollie Link bore the reputation of being a woman "who makes dates with men and meets them at assignation houses." In Branch's Crim. Law the following is said to be the rule: "House may be proven to be disorderly by the general reputation of the character of the women residing at or frequenting the house," citing Sylvester v. State, 42 Tex. 496; Ramey v. State, 39...