
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Criminal Law (§ 1083) — Statements os' Fact and Bills of Exception — Time por Filing.
    In a misdemeanor case, where the court by yerbal order extended the time within which to file a statement of facts and bills of exception, such order could not be entered nunc pro tunc after an appeal had been perfected.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.]
    2. Criminal Law (§§ 1092, 1099) — Statements op Fact and Bills of Exception-Time por Filing.
    Where, in a misdemeanor case, the only authority to file a statement of facts and bills of exception after term time was a verbal order of the judge, a statement and bills filed within the time as so extended could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2806-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    3. Disorderly House (§ 16) — Evidence-Admissibility.
    On a trial for keeping a disorderly house, evidence that a woman, who frequently visited such house, and who would be followed shortly by a man, bore the reputation of being a woman who made dates with men and met them at assignation houses, was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    4. Criminal Law (§ 1090) — Appeal—Reservation op Grounds op Review — Necessity op Exceptions.
    The admissibility of testimony could not be considered on appeal where no bill of exception was reserved to its admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 884) — 'Verdict—Correction.
    Where the jury in a misdemeanor case returned a verdict finding accused guilty and recommending a suspension of sentence, without assessing the punishment, the court properly refused to receive the verdict, and directed the jury to assess the punishment; as a suspension of sentence in a misdemeanor case is not authorized by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. ¡h 884.]
    6. Disorderly House (§ 19) — Question por Jury.
    On a trial for keeping a disorderly house, where the evidence of the witnesses for the state, if believed, justified a verdict of guilty, though the testimony for accused would support a different finding, this contested, issue of fact was properly submitted to the jury.
    [Ed. Note. — For other cases, see- Disorderly House, Cent. Dig. § 30; Dec. Dig. § 19.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Emma Smith was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly house, a house where men and women met by mutual appointment for the purpose of sexual intercourse.

The term of court at which appellant was tried adjourned July 5, 1913. No order was entered of record authorizing a statement of facts and the bills of exception to be filed after term time. This being a misdemeanor conviction, the Assistant Attorney General has filed a motion to strike out the statement of facts and bills of exception. At the request of appellant’s counsel, time was given him to perfect the record if same could be done. Since that time papers have been filed wherein the county judge states he remembers that he gave a verbal assent to an extension of time, but that no order was ever entered on the docket of the court, nor in the minutes of the court. Why, in criminal cases, as well as in civil eases, counsel will not prepare and see that the orders and judgments are properly entered in the minutes in their cases, we fail to understand. This verbal order, if made prior to the adjournment of the court for the term, is not a part of the record in this ease. In the case of Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566, and s. c., 61 Tex. Cr. R. 340, 135 S. W. 568, the power of the court to enter nunc pro tunc orders after an appeal has been perfected was discussed, and the decisions of the court all hold that trial courts cannot do so, and, if the order does not appear of record, we cannot consider these matters. As stated in that opinion, if the question was an open one, the writer would individually be inclined to a different view; but, in rules of procedure where there has been a settled construction of our statutes, we have followed the established rule, and, under the 'showing made in this case, the motion of the Assistant Attorney General must be sustained. However, were we to hold otherwise, the record as made would present no error.

The only bill of exception in the record, while rather incomplete, yet if we take it in connection with the statement of facts, would present this question: A witness testified that Ollie Link was a frequqnt visitor at appellant’s home; that they had seen her come on one street car and enter this house; that on the next car a man would come and enter the house, and after they had remained there awhile they both would leave; that Ollie Link bore the reputation of being a woman “who makes dates with men and meets them at assignation houses.” In Branch’s Orim. Law the following is said to be the rule: “House may be proven to be disorderly by the general reputation of the character of the women residing at or frequenting the house,” citing Sylvester v. State, 42 Tex. 496; Ramey v. State, 39 Tex. Cr. R. 200, 45 S. W. 489; Owens v. State, 53 Tex. Cr. R. 1, 108 S. W. 379; Morris v. State, 38 Tex. 603; Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Wimberly v. State, 53 Tex. Cr. R. 12, 110 S. W. 904. Again: “General reputation of bouse and inmates may be proven.” Forbes v. State, 35 Tex. Cr. R. 26, 29 S. W. 784. “Witness may testify as to general reputation of inmates of the house, though he does not know them.” Downs v. State, 23 S. W. 684. Thus it is seen under all our decisions the court committed no error in admitting this testimony.

The other complaints in the motion as to • admissibility of testimony cannot be considered, for if it was objected to no bill of exception was reserved to the action of the court in admitting it.

In the motion for new trial we find the following statement: That the jury first returned the following verdict: “We, the jury, find the defendant guilty as charged and recommend a suspension of jail sentence.” That the court refused to accept the verdict, and instructed them to retire and return a verdict according to his instructions, which they did, and returned a verdict finding appellant guilty, and assessing her punishment at a fine of $200 and 20 days’ confinement in the county jail. If such a proceeding took place, it is not presented in a way we can review the matter, being verified by no bill of exception, and the only place it is mentioned being a recitation in an un-sworn motion for a new trial. But if properly presented for review, the court acted properly in the premises. There is no law authorizing a suspension of sentence in a misdemeanor case, and the court should not have received the verdict first returned, but should, as he did, require the jury to pass on her guilt or innocence, and, if they found her guilty, assess the punishment.

The other grounds in the motion allege that the evidence is insufficient to sustain the conviction. The evidence of Messrs. Ferguson, Tart, Schlanger, Key, and others, if believed by the jury, sustains the verdict, and, while the testimony offered in behalf of appellant would support a different finding, yet this contested issue of fact was properly submitted by the court to the jury, and they find against her.

The judgment is affirmed.  