Stone v. State

• Citation: 2 S.W. 585
• Parties: STONE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 10 November 1886
• Court: Court of Appeals of Texas

2 S.W. 585

STONE

v. STATE.¹

Court of Appeals of Texas.

November 10, 1886.

Appeal from county court, Hunt county.

The conviction in this case was for keeping a disorderly house in Hunt county, Texas, and the penalty assessed against the appellant was a fine of $500.

It was proved on behalf of the state that the "Old Coffey House," in Greenville, Hunt county, Texas, was divided into two parts; that the one-story

part was occupied by a saloon, under the proprietorship of one Behrens, and that the two-story part was generally and commonly known as a house of prostitution; that the defendant was often seen in both parts of the said house, both during the day and night; that he had partaken of meals in the dining-room of the two-story part, and that, on one occasion at least, he was heard to give directions in the cook-room respecting the preparation of meals, and that he had drawn beer behind the bar in the saloon, and drank it; that he had sent articles of merchandise from his store to the said house of prostitution, and had stood as security for furniture supplied to the said house; that he had, as surety, signed the bail-bonds of two or more prostitute inmates of the said house, upon their arrest for vagrancy, and, on one occasion, had paid the fines of several prostitutes, by drawing a check in favor of Behrens, which was indorsed by Behrens to the police official.

The principal witness for the state, Josie Spence, testified that the defendant was the "boss" of the two-story part of the Coffey House; that he employed her and the other women under a sham contract, paying them three dollars per week as chamber-maids, but taking the money back as soon as paid. As a matter of fact, the witness and the other women paid the defendant for the privilege of staying there. The witness admitted that she had been prosecuted and fined for prostitution both in Denison and Greenville; that the defendant held a mortgage on her furniture for $20.75; but denied that she had ever told one Jesse Thompson that, unless the defendant released her furniture, she would testify against him on this trial, and convict him, and that she would convict defendant and Behrens if they refused to pay her lawyer's fees in the cases pending against her. She denied that she ever contracted with Behrens to pay him five dollars per week for board. One witness testified for the state that the defendant told him, about May 1, 1886, that he could run a whore-house in Greenville, and beat the officers; and still another witness testified that the defendant told him to talk to him (defendant) about the case for keeping the disorderly house, and not to Behrens.

Behrens testified for the defendant that the defendant had nothing more to do with any part of the premises known as the "Old Coffey House" than to collect from the women the several amounts they owed witness, as they fell due; the said collections being applied to the discharge of witness' debts to the defendant. The witness was the sole proprietor of the whole premises. Defendant furnished him supplies, loaned him money, and indorsed for him, and against such claims collected the dues of the women as they fell due. The defendant's claim upon the witness was partly secured by mortgage.

On behalf of the defendant, Jesse Thompson testified that Josie Spence made to him the statements which she denied on the stand. The defense offered in evidence two notes executed by Behrens to defendant, aggregating $80, one of which was secured by mortgage on the table-ware and furniture of the Coffey House, which instruments were excluded as irrelevant and immaterial.

Terhune & Yoakum and R. L. Porter, for appellant.

The court erred in excluding the notes and mortgages offered in evidence by the defendant. That evidence was both relevant and material, as tending to show that the defendant was but a creditor of the actual proprietor of the house. Whart. Crim Ev. (9th Ed.) § 24.

The trial court erred in permitting the county attorney, in his closing address to the jury, to use the language set out in the opinion of the court. House v. State, 9 Tex. App. 567; Conn v. State, 11 Tex. App. 391. While it is competent to prove, by reputation, that the inmates of a house are prostitutes and vagabonds, and thereby fix the character of the house, yet it is not competent to show the character of the house itself to be a disorderly house. Henson's Case, 62 Md. 231; S. C. 19 Cent. Law J. 230, and 4 Crim. Def. 739; Caldwell's Case, 17 Conn. 467; Boardman's Case, 64 Me. 523; Toney's Case, 60 Ala. 97; Lyon's Case, 39 Iowa, 379; Jourdine's Case, 4 Cranch, C. C. 338; 2 Bish. Crim. Proc. § 113; Whart. Crim. Ev. 260, 261; 3 Greenl. Ev. 186.

Asst. Atty. Gen. Burts, for the State.

WILLSON, J.

1. The notes and mortgage offered in evidence by the defendant, and rejected, were not immaterial or irrelevant. They tended to show that Behrens, and not the defendant, was the keeper of the house. It was error to reject them. Whart. Crim. Ev. (9th Ed.) § 24.

2. That portion of the charge of the court which instructs the jury that proof of the general reputation of the house is sufficient to establish the character of the house is a charge upon the weight of evidence. It is the settled doctrine in this state that the character of a house alleged to be a disorderly house may be established by proof of its general reputation as such, and it has been held that such proof is sufficient to warrant the jury in finding the house to be disorderly. Morris v. State, 38 Tex. 603; Sylvester v. State, 42 Tex. 496; Allen v. State, 15 Tex. App. 320; Burton v. State, 16 Tex. App. 156. While the doctrine may be against the weight of authority, it is the established rule in this...