
    LAYTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.
    On Rehearing, March 8, 1911.)
    1. Intoxicating Liquors (§ 40*) — Application of Disorderly House Statute — Effect of Local Option.
    The disorderly house statute is a general law, and applies to all parts of the state, whether local option is in force or not.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 40.*]
    2. Disorderly House (§ 16*) — Evidence — Admissibility.
    In a prosecution for keeping a disorderly house, in that intoxicating liquors were illegally sold and kept for sale therein, there was error in admitting evidence of sales to and purchases by persons who were not shown to be employfis of or connected in business with defendant.
    [Ed. Note. — For other cases, see Disorderly House, Dec. Dig. § 16.*] -
    3. Witnesses (§ 244*) — Examination—Leading Questions.
    There was no error in permitting leading questions to be asked witnesses for the state, who gave testimony favorable to defendant at variance with their statements in the grand jury room.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. § 244.*] .
    4. Witnesses (§ 393*) — Impeachment—Proof of Former Testimony.
    W’here witnesses for the state proved on the trial to be witnesses favorable to defendant, it was not error to permit the state to prove by them what they had formerly testified before the grand jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.*]
    5. Disorderly PIouse (§ 17*) — Evidence— Sufficiency.
    Evidence held insufficient to show that defendant was the keeper of a disorderly house.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. § 17.*]
    Appeal from Ellis County Court; J. T. Spencer, Judge.
    Dan Layton was convicted of keeping a disorderly house, and he appeals.
    Reversed.
    T. H. Collier and Farrar & McRae, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Motion.is made by the Assistant Attorney General to dismiss the appeal herein, on the ground that the recognizance is not sufficient to give, this court jurisdiction.' An inspection of tlie recognizance discloses that the motion is well taken. See Bird v. State, 134 S. W. 687, Switzer v. State, 134 S. W. 705, and Harden v. State (this day decided) 130 S. W. -.

The motion is sustained, and the appeal is accordingly dismissed.

On Rehearing.

At a former day of this term this cause was dismissed because of insufficient recognizance. Appellant has filed a motion to reinstate, filing a recognizance in accordance with the provisions of our Code, and we will discuss the case on its merits.

Appellant was tried in the county court of Ellis county upon an indictment containing several counts; the first charging that he pursued the occupation of selling and offering for sale intoxicating liquors by taking orders therefor. The jury acquitted him of this count, and, while a number of questions are raised under it, we will not discuss them, because of this acquittal. The other counts charged defendant with keeping a disorderly house, in that he kept a house in which spirituous, vinous, and malt liquors were sold and kept for sale, without having obtained a license to sell such liquors.

Appellant filed a motion to quash the second and third counts in the indictment, charging him with keeping a disorderly house. The court did not err in overruling the motion. See Wimberly v. State, 53 Tex. Cr. R. 11, 108 S. W. 384; Fleming v. State, 28 Tex. App. 234, 12 S. W. 605; Mitchell v. State, 34 Tex. Cr. R. 311, 30 S. W. 810.

A number of exceptions were reserved to the admissibility of evidence under the first count in the indictment; but, as before stated, as he was acquitted of this offense, it is useless to discuss them.

The court did not err in refusing to give the special charge requested by defendant, instructing the jury that the disorderly house statute did not apply to Ellis county. Said act is a general law, and applies to all counties in Texas, whether local option is in force or not.

The court erred in permitting evidence of sales of intoxicating liquors by S. N. Creech and others, they not having been shown to be in the employ of defendant; and it was also error to prove that any person other than defendant purchased intoxicating liquors in Dallas. To have rendered this testimony admissible, it would have been necessary to show that such persons were in the employ of, or had some business connection with, this defendant. As we read this record, Creech and Allen had the house rented and owned the restaurant. It is true that two or three of the witnesses for the state, after testifying that Creech and Allen owned the restaurant and had control of the building, and that defendant was a mere employé, admitted that to the grand jury they had stated that defendant run or owned the business; and in the condition of the record we do not think the court erred in permitting leading questions to be asked these witnesses. They had testified to a certain state of facts in the grand jury room. The state placed them on the stand, apparently believing they would still so testify. On the other hand, they proved to be excellent witnesses for the defendant, and the court did not err in permitting the state to prove by them1 what they had formerly testified.

The state, however, failed to prove by any witness that defendant was the owner, lessee, or ^ occupant of the building, or that he was in control of same, except by indirect testimony that certain witnesses had formerly so testified. On the other hand, the defendant proved by the lease contract and a number of witnesses that he was not the proprietor of the place, or had any connection therewith, otherwise than as a waiter or clerk. He might be indicted and prosecuted for the sale of .liquor shown to have been made by him; but the evidence does not sustain the allegation that he was the keeper of a disorderly house.

Reversed and remanded.  