Lowry v. State , 96 Tex. Crim. 347 ( 1923 )

Conviction is for keeping a bawdy house. Punishment, fine of two hundred dollars and twenty days in the counay jail.

The indictment charged the keeping of a bawdy house but did not allege that accused owned, leased, occupied or controlled the same. Appellant requested the court to charge the jury that unless appellant owned, leased, occupied or controlled the house which she was charged with keeping they should acquit her, and after conviction filed a motion in arrest of judgment attacking the sufficiency of the indictment for the omission of such allegations. The requested charge and the motion in arrest are based upon the opinion in Austin v. State, 92 Tex. Crim. 591, 244 S.W. Rep., 1011. Our state's attorney has called attention to the conflict between the Austin case and other decisions of this court. Our opinions on the subject of keeping bawdy houses are confusing unless they are read in connection with the statute in effect at the time they were rendered. Prior to 1889 the law did not make it necessary to allege or prove that the keeper of the bawdy house was the owner, lessee or tenant thereof. Killman v. State, 2 Texas Crim. App., 222; Lowe v. State, 4 Texas Crim. App., 34. The amendment to this law passed by the Legislature in 1889 made it necessary to allege and prove that the alleged keeper of such house was the owner, lessee, or tenant. Lamar v. State, 30 Texas Crim. App., 693, 18 S.W. Rep., 788; Mitchell v. State,34 Tex. Crim. 311, 30 S.W. Rep., 810. The law was again amended in 1907 and is carried forward in the revision of the Penal Code in 1911 as Article 500. It reads:

"Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, a bawdy house or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy house or a disorderly house in any house, building, edifice or tenement owned, leased, occupied or controlled by him, directly as agent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdy house or a disorderly house, as the case may be, and, on conviction, shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house." An analysis of the Article in question reveals that it is only when an accused is charged with knowingly permitting the keeping of a bawdy house that it is necessary to allege and prove that the said house is owned, leased, occupied or controlled by him, but that it is not necessary to so allege or prove when accused is charged with the keeping of such house. Clifford v. State, 77 Tex. Crim. 204, 178 S.W. Rep., 365; Spears v. State, 89 Tex. Crim. 459, 323 S.W. Rep., 326; Mosher v. State, 62 Tex. Crim. 42, 136 S.W. Rep., 467, are direct authority for this construction. The opinion in the Austin case (supra) is clearly wrong and resulted from an incomplete analysis of the statute and from a failure to have our attention called to the authorities above cited, and it is expressly overruled. It follows that the trial court committed no error in overruling the motion in arrest of judgment and in declining to give the special charge requested.

A witness for the State was asked if he knew the reputation of the house with the keeping of which appellant was charged and answered that its reputation was that of a house of prostitution. No objection was urged to the form of the question but was based only on the ground that it was immaterial and irrelevant. The objection as presented was properly overruled. Later appellant requested the court to withdraw this testimony from the jury on the ground among others, that the inquiry was not as to the general reputation of said house. Exception is reserved to the failure of the court to grant this request. We think it unnecessary to discuss the matter at any length. The other evidence in the case is amply sufficient to establish the guilt of appellant as the keeper of a bawdy house and we can not regard the matter complained of as so serious as to require a reversal. If the objection had been to the form of the question at the time it was propounded doubtless it would have been changed to meet the criticism.

Finding no error which would call for a reversal the judgment is affirmed.

Affirmed.

[Rehearing denied January 16, 1924. — REPORTER.]