
    DAVILA v. STATE.
    (No. 10991.)
    Court of Criminal Appeals of Texas.
    Oct. 19, 1927.
    Criminal law <&wkey;338(7) — In prosecution for selling Marijuana, admitting evidence showing that defendant’s place of business was house of prostitution held error as prejudicing jury.
    In prosecution for selling preparation known as Marijuana, admitting evidence tending to show that defendant’s place of business was house of prostitution, thereby constituting, an indirect attack upon defendant’s reputation, neither of which had been put in issue by defendant, held error, since such evidence was.not relevant and could only tend to prejudice jury against defendant.
    Commissioners’ Decision.
    Appeal from Harris County Court at Law; Ben E. Wilson, Judge.
    Alberto Davila was convicted of selling a preparation known as Marijuana, and be appeals.
    Reversed and remanded.
    Mark M. Carter, of Goose Creek, for appellant. ' ■
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

The appellant was charged in the county court of Harris county with selling a preparation known as Marijuana. He was found guilty and his punishment fixed at 9 months in the county jail.

The testimony is sufficient to show that appellant did sell one Earnest Hightower a preparation known as Marijuana, on or about the date alleged in the information.

On cross-examination of the wife of appellant by the state, she was asked:

“Is it not a fact that you have pretty bad characters around your place of business and that you have several Mexican girls that are not working in your restaurant?”

This was objected to for the reason that it was an attempt .upon the part of the state to show that defendant’s place of business was used as a house of prostitution and was an indirect attack upon defendant’s reputation, and neither of these questions had been put in issue by the defendant. The witness was forced over objection to answer that there were some Mexican women who came to their place of business to eat, and that she did not know what they did behind the house; that they may have their men in the house after night. The state, over similar objections, also proved by the deputy sheriff on his examination in chief that girls were hanging around defendant’s place of business and never seemed to be doing anything, and that some of these girls were always in and about the place at night, and that it seemed to be a hanging out place for these women, and that he had seen them in the rear of the restaurant in houses controlled by defendant, and that they never seemed to be doing anything.

The state’s attorney has filed a brief confessing error on this point, and we agree with him. This appellant was on trial for the sale of Marijuana, which seems to be a preparation used in a pipe or cigarette to smoke. The sale of this was the issue made. The state could not turn aside from this issue to prove another and a different offense in no way relevant to the legitimate issue made by the pleadings of the state and defendant, and which could only tend to prejudice the jury against the appellant. Schwen v. State, 37 Tex. Cr. R. 368, 35 S. W. 172; Williamson v. State, 13 Tex. App. 518; McAfee v. State, 17 Tex. App. 135; Wagner v. State, 87 Tex. Cr. R. 47, 219 S. W. 471; Wade v. State, 48 Tex. Cr. R. 512, 90 S. W. 503; Branch’s P. C. § 166.

Appellant’s remaining bills show no error, in our opinion. ■

The judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.  