
    ELLIS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 6, 1912.)
    1. Prostitution (§ 3*) — Association with Prostitutes — Information.
    An information alleging that defendant, referred to as “Jim,” but not otherwise alleged to be a “male person,” did habitually associate with a prostitute, etc., did not state an offense, under Pen. Code 1911, art. 636, providing that “all male persons” who habitually associate with prostitutes shall be deemed vagrants.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dec. Dig. § 3.*]
    2. Prostitution (§ 1*) — Prostitutes — “Habitual Association.”
    Evidence that defendant occasionally went to the room of a prostitute at night for an immoral purpose did not show “habitual association” with a prostitute, within Pen. Code 1911, art. 636, providing that all male persons who habitually associate with prostitutes shall be deemed vagrants.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1;* Disorderly House, Cent. Dig. § 7.
    For other definitions, see Words and Phrases, vol. 4, p. 3201.]
    Appeal from Scurry County Court; Fritz R. Smith, Judge.
    Jim Ellis was convicted of vagrancy, and he appeals.
    Reversed and dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted under article 636 of the Penal Code which reads: “All male persons who habitually associate with prostitutes, or habitually loiter in and around houses, of prostitution, or who, without having visible means of support, receive financial aid or assistance from prostitutes,” are vagrants. The information in this case charges that appellant “did habitually associate with a prostitute, to wit, Bertha Pearson, the said Bertha Pearson then and there being a prostitute.” In no part of the complaint is appellant said to be a “male person,” nor is any allegation used from which’ it could be inferred that he was a man, unless it be the fact that he was named “Jim.” This is a name generally given to persons of the masculine gender, and we are not authorized to conclusively so presume in passing on the sufficiency of the indictment. It is not an offense for a woman to associate with a prostitute under the provisions of the act. The information is insufficient to charge an offense.

Again, we hardly think the evidence would support the conviction. The statute was intended to reach a class of persons who associated with prostitutes as their equals, or who associated with them in public, and was not intended , to make a vagrant of a person who, at night, went occasionally to the room of a woman of loose morals, and yet who at no other time was seen in her company. The word “habitually” has a definite and fixed meaning in law, and in saying “habitually associated with prostitutes” it was intended to reach a class of persons who made a habit of associating with them, either in public or private, and going to their room occasionally at night, even though it was for an immoral purpose, would not bring one within the definition of this offense.

We have a statute denouncing as an offense one who habitually has carnal intercourse with a woman, it being fornication or adultery, as the facts may show; and if a person made a habit of going to a woman’s house, it would come within the definition of these offenses, but not within the terms of the vagrancy act, for it is a different offense.

The judgment is reversed, and the prosecution ordered dismissed because of the insufficiency of the complaint.  