
    HARDEMAN v. STATE.
    (No. 7459.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.
    On Motion for Rehearing, March 21, 1923.
    State Rehearing Denied June 20, 1923.)
    ,1. Disorderly house <S&wkey;l6 — Evidence that female inmates of house are prostitutes as shown by prior conviction is admissible.
    In disorderly house case, the state may show that the female inmates are prostitutes, to accused’s knowledge, and proof of such character of the inmates may be made by showing that the inmates or any of them have previously been charged and convicted of vagrancy as prostitutes.
    2. Criminal law <&wkey;400(2) — 'Oral proof of conviction not best evidence.
    ■ In disorderly house case, on the issue of character as prostitutes of inmates of the house, testimony of a justice of the peace that two inmates of accused’s house had pleaded guilty to vagrancy as being common prostitutes in his court, the docket entries of the justice showing these facts not being admitted in evidence, was objectionable as oral testimony of record facts.
    Appeal from Tarrant County Court at Law; P. W. Seward, Judge.
    Mrs. R. A. Hardeman was convicted of keeping a bawdyliouse, and appeals.
    Reversed and remanded.
    ¡Mays & Mays, F. M. Chaney, and Henry R. Bishop, all of Fort Worth, for appellant.
    R. K. Hanger, Dist. Atty., and Robt. B. Young, ‘ Jr., Asst. Dist. Atty., both of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State..
   LATTIMORE, J.

Appellant was convicted' in the county court at law of Tarrant county of keeping a bawdyhouse, and her punishment fixed at a fine of $200 and 20 days in the county jail.

There is complaint in appellant’s brief of the manner of substitution of the information and complaint herein. There is no bill of exceptions relating to or presenting this matter, and we find nothing in the transcript from which we derive any information of the fact that there has been such substitution. In this. condition of the record it is manifest we cannot consider this complaint presented in the brief.

It appears that upon information the officers went to a rooming house in Fort Worth which was occupied by appellant. They asked ber in regard to the people in the house, and she told them that the oply occupants of her rooms at that time were two men. They proceeded to search the house, and found in a number of the rooms men in bed and in the rooms with women in various stages of undress. It was shown by sufficient testimony that a number of said women were prostitutes, and that they had been charged with vagrancy, to wit, being common prostitutes, and had paid fines therefor. Testimony of the fact that such women had the general reputation of being common prostitutes, and that they had been charged in court with vagrancy based upon their charac-. ter as prostitutes, and that they had been fined therefor, would seem to be admissible.

The evidence seems to us to amply support the conclusion of guilt, and, finding no error in the record, an affirmance is ordered.

On Motion for Rehearing.

In making out a disorderly house case it is permissible for the state in any legitimate way to show that the female inmates of such house are prostitutes, and that the accused is aware of such fact. One way in which our courts have said that this proof may be made is by showing that prior to the time charged the women or any of them resorting- to or residing in such house have been charged or convicted of that character of vagrancy arising from being common prostitutes. This was attempted in the instant case, and the state’s method of making such proof is vigorously attacked in the motion for rehearing. A justice of the peace testified that two women who were found in appellant’s house on the occasion same was raided by the officers had pleaded guilty to vagrancy, to wit, to being common prostitutes, in his court. When we wrote our original opinion we were under the belief that the docket of said justice showed these facts, and that said docket was in evidence. The Bowman Case, 73 Tex. Cr. R. 194, 164 S. W. 846, contains the following:

“Objection was urged that this testimony was irrelevant and immaterial to any issue in the case, and was highly prejudicial to the rights of defendant, and because it was not the-best evidence. If appellant had pleaded guilty to a charge of vagrancy, the court papers and dockets should be used to show that fact; and, further, the duty was upon the state to first show under what section of the vagrancy statute, if this was what was intended, the defendant had been charged, and had pleaded guilty, before such plea, if admissible at all, could have been admissible in this case. The court overruled the objection, and the testimony went before the jury. We think this was error.”

This would seem to indicate that the fact of one being charged with being a vagrant, to wit, a common prostitute, and having pleaded guilty to such charge, may be shown by the complaint and by the docket entries. 'Our attention has been directed to a qualification attached to the bill of exceptions presenting this matter, in which the learned trial court says that the docket entries were not admitted in evidence. This makes it plain that the justice was giving oral testimony of record facts. Objection was made to his testimony that it was not the best evidence. This was overruled. It was an erroneous ruling. Oral testimony of such facts when relied on to make , out guilt seems inadmissible. Goosby v. State, 80 Tex. Cr. R. 136, 189 S. W. 144. A plea of guilty or a judgment of conviction of the original- taker, is admissible in developing a case against one charged with receiving and concealing stolen property, as proving the theft, but it is nowhere held that such facts may be proven orally if there be objection. A plea of guilty to vagrancy based on any other section of the vagrancy statute than the one making a vagrant of a common prostitute would havb no pertinence in making out a case such as the one before us, and such testimony would be inadmissible. The fact that this section of the statute formed the basis of the charge to which the plea of guilty was entered might be evidenced by the complaint, or in some cases by the docket entries, but secondary evidence of the contents of such writings in a case of this kind would not be admissible in 'the first instance. This being true, we think ourselves in error in not upholding appellant’s objection to the testimony of said justice of the peace. '

The motion for rehearing must be granted, the affirmance set aside, and the judgment now reversed and the cause remanded.

On State’s Motion for Rehearing.

The state files a motion for rehearing in which no authorities are cited holding contrary to our conclusion as announced in the original opinion, and no argument is presented attempting to show any fallacy or error in our reasoning.

No error being made to appear in our decision of the case, the motion will be overruled. 
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