Lowe v. State , 4 Tex. Ct. App. 34 ( 1878 )

White, J.

The indictment, which was presented and filed April 28, 1877, in this case, charged “ that, on, to wit, the 20th day of April, in the year of our Lord eighteen hundred and seventy-seven, in the county of Parker, in the state of Texas, Kate Lowe did keep a house for the purpose of public prostitution, and as a common resort for prostitutes and vagabonds, and which was then a disorderly house,” etc. The motion of defendant to quash the indictment having been overruled, that ruling is assigned as one of the errors committed on the trial.

Under the statute (Pasc. Dig., art. 2027), and the many decisions heretofore made by the Supreme and this court, the allegations of the indictment appear amply sufficient to charge the offense of keeping a disorderly house. Thompson v. The State, 1 Texas Ct. App. 56; Thompson v. The State, 2 Texas Ct. App. 82; Brown v. The State, 2 Texas Ct. App. 189; Killman v. The State, 2 Texas Ct. App. 222; Sylvester v. The State, 42 Texas, 496; Morris v. The State, 38 Texas, 603.

In addition to her plea of not guilty, defendant pleaded specially in bar of this prosecution that she had, on the day preceding this trial, been “ tried and acquitted in this court upon the charge of keeping a disorderly house,” and as an exhibit to this plea, and a part thereof, she filed the complaint, and the information based thereupon, upon which she had been tried and acquitted; which information charged her with keeping a disorderly house in the county of Parker, on March 24, 1877. This information was filed March 30, 1877.

The special plea in bar was overruled by the court, as is shown by the recitals of the judgment, and the three supposed errors mainly relied upon are, first, the action of the court in overruling this plea; second, the action of the court in excluding evidence in support of the plea; and, third, the refusal of the court to submit to the jury the issue presented by the special plea, in order that they might ascertain by their verdict whether the facts stated were true or untrue. If no error was committed by the court in its action upon the first of these propositions, then it necessarily follows that no error was committed with regard to the last two. Now, let us see whether the court erred in holding that the plea was insufficient.

The pleas of former acquittal and conviction, as provided by the Code of Criminal Procedure (Pasc. Dig., art. 2951), include every right secured at common law by such pleas. The general rule with reference to them is this: that, in order to entitle a party to invoke them, the crime charged, and against which they are pleaded as a bar, should be the same with the one in which the conviction or acquittal was had — that is, that they be, in truth, the same, though the indictments may differ in immaterial circumstances. 1 Chitty’s Cr. Law, 452.

And another rule in determining the sufficiency of the pleas and identity of the cases is that the plea will generally be held good when the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Whart. Cr. Law, secs. 565, 566; Thomas v. The State, 40 Texas, 36.

Applying these rules to the plea of former acquittal in question, and we are of opinion that the plea was not a good one ; that the two offenses charged were not identical; and that the evidence necessary to support the former case would not, and could not, have made out the latter.

As we have seen, the first information was filed March 30, 1877, and no proof necessary to sustain that charge was permissible of acts done subsequent to the date of the filing of the information; and, therefore, the evidence in that case could'not have covered the charge of keeping a disorderly house in the month of April. And the charge of the court properly limited the finding of the jury to the time between March 21st and April 28th.

The indictment in this case was filed April 28th, and the offense .was charged to have been committed on April 20th. The defendant may have kept an orderly, peaceable, and quiet house during the month of March, and yet in the month of April may have opened it up and kept it for the purposes of public prostitution, and by the 20th of this latter month it might have become a common resort for prostitutes and vagabonds. Such being the case, as shown by the plea, the correct rule of practice is that laid .down by our Supreme Court in the case of Boggess v. The State. The court says : “On the contrary, the special plea shows that the offenses are distinct, and not identified by averments, as must be done in all material points to be of any avail as a defense. It being made to appear by the averments that the offenses charged in the two indictments were not the same offense, the court did not err in deciding the question without the intervention of a jury. If the offenses, as charged in the indictments, had been identified as the same offense by the averments of the indictment, then the identity would be a question of fact, to be decided by the jury from the evidence.” 43 Texas, 347.

We do not think the court erred in holding the plea insufficient, or in refusing to permit evidence to be introduced with regard to it, or in declining to submit to the jury that they should find by their verdict whether the plea was true or untrue.

There is only one other ground of error complained of which we propose to notice, and that is that the court permitted the State to go behind the month of April to show that prior to that time the defendant had rented the house in question. We see no error in this ruling of the court. The witness Millican stated that, either in the early part of the year 1877, or the latter part of the year 1876, he rented the house to the defendant, and that she has occupied it ever since. The object of the evidence was to show that the defendant was the keeper and proprietress of the disorderly house, and the evidence was entirely legitimate for that purpose.

We do not consider any of the other errors complained of as tenable, and, therefore, do not deem it necessary to discuss them. The charge of the court presented the law applicable to the facts, and it was not error to refuse the special instructions asked by the defendant. The evidence abundantly supports the verdict and the judgment rendered, and the judgment is, therefore, affirmed. .

Affirmed.