
    GOLDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 370) — Evidence—Oihee Offenses — Acts Showing Intent.
    On the trial of the owner of a house for knowingly permitting it to be kept as a house of prostitution where prostitutes were permitted to resort or reside for the purpose of plying their vocation, evidence that a number of other houses owned by accused were occupied by women who were running houses of prostitution, that the occupants of the house in question and the other houses had been arrested charged with being prostitutes, and that accused went on their bonds was competent to show accused’s knowledge of the character of the occupants and their vocation.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dec. Dig. § 370.]
    2. Disorderly House (§ 16) — Evidence — Reputation.
    On the trial of the owner of a house for knowingly permitting it to be kept as a house of prostitution, evidence of the general reputation of the house was admissible.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    3. Disorderly House (§ 6) — Permitting Use of House fob Pueposes of Prostitution.
    Where the owner of a house is charged with knowingly permitting it to be kept as a house of prostitution where prostitutes are permitted to resort or reside for the purpose of plying their vocation, knowledge that the occupants were prostitutes and were running houses of prostitution must be traced to accused.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 6, 9-13; Dec. Dig. § 6.]
    4. Criminal Law (§ 678) — Reception of Evidence — Election Between Acts.
    Where an information for knowingly permitting a house to be kept as a house of prostitution contained only one count, while the evidence showed that eight houses owned by accused were occupied by prostitutes who were running houses of prostitution, the state should have been required to elect upon which offense it would seek a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    5. Indictment and Infobmation (§ 131)— Joinder of Offenses.
    An indictment for felony may contain separate and distinct counts to meet the proof, but all must relate to the same transaction, while an indictment for misdemeanor may charge separate and distinct offenses if contained in separate and distinct counts.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 424; Dec. Dig. I 131.]
    6. Criminal Law (§ 678) — Reception of Evidence — Election between Acts.
    Under an information containing a single count if the evidence discloses two or more separate and distinct transactions, any one of which would sustain a conviction, the state must be required to elect, unless the offense charged is a continuous one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    E. Golden was convicted of an offense, and lie appeals.
    Reversed and remanded.
    Richard Mays, of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was prosecuted and convicted under an information and complaint charging that on or about 1st day of July, 1912, he “was the owner of a certain house, building, and edifice, which he then and there did knowingly and unlawfully permit to be kept as a house for purposes of prostitution, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation.”

The information contains but one count. The state was permitted to prove by Willie Lewis that she rented a house from appellant; that she was a prostitute and had pleaded guilty and been fined as a common prostitute. The state also was permitted to prove that appellant owned some eight or ten other houses located in the same neighborhood as the house rented by Willie Lewis, and that they were all occupied by women who were running houses of prostitution. The defendant objected to the testimony going to show that this witness and the occupants of the other houses had been arrested charged with being prostitutes; that when they were arrested he went on their bonds; and that he owned some eight or ten houses other than that occupied by Willie Lewis, all of which were occupied by other prostitutes who were plying their vocation. As this is an offense where knowledge of the character of the occupants and- their vocation must be traced home to appellant, all this testimony was properly admitted in evidence. Any testimony which would tend to show that the houses were houses of prostitution, that appellant was the owner of such houses and collected rent from the occupants, that he knew the vocation the occupants were pursuing, would be admissible, and the court committed no error in admitting the evidence that was adduced on the trial. Reputation of the houses in question was admissible under all of our decisions, as well as the other facts herein recited.

We have thus grouped all the bills of exception to the introduction of testimony and hold that the court committed no error in admitting the same, as it was necessary to trace knowledge to defendant that the women were prostitutes and were running houses of prostitution. Section 547 of White’s Ann. Penal Code, and cases there cited. There are many decisions of this court on the questions raised by appellant, and they are all adverse to his contention. It has been held that a house may be proven to be a disorderly house by the general reputation of the character of the women residing at or frequenting the house. 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 Ter. Cr. R. 12, 108 S. W. 384. It has also been held that the general reputation of the inmates may be proven. Forbes v. State, 35 Tex. App. 26, 29 S. W. 784; Downs v. State, 23 S. W. 684; Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Acts of defendant showing knowledge of the character of the women are admissible. Brown v. State, 48 S. W. 176. Evidence of acts showing conduct and conversation had with inmates is admissible to show character of the place. Hickman v. State, 59 Tex. Cr. R. 88, 126 S. W. 1149; Robbins v. State, 60 Tex. Cr. R. 523, 132 S. W. 770; Finn v. State, 60 Tex. Cr. R. 521, 132 S. W. 805. Rendition of property for taxes made and sworn to by defendant is admissible as a circumstance tending to show ownership. Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Deed made to defendant to property in question is admissible on the question of ownership. Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Many other cases could be cited showing the admissibility of the testimony in regard to which the bills of exception were reserved, but we deem it unnecessary, as the above cases pass upon virtually every question raised by appellant as to the admissibility of the testimony.

However, as hereinbefore stated, the information and complaint contains but one count, and it is charged in that count that he knowingly permitted a house owned by him to be kept as a house of prostitution and as a place where prostitutes resorted and resided. The evidence offered in behalf of the state would show that appellant was the owner of lots 6 to 9 in block 120, lots 3 and 4 in block 121, and lot 1 in block 120. The evidence further shows that he had some ten houses located on these lots, and that Willie Lewis lived in one of these houses; that women named Erie and Tobe occupied another of these houses; that Lizzie Lee occupied another; that Bacilla Brown occupied another; Earl Lewis another; Tecie Alexander another; Willie Hodge, Annie Burns, and Mamie Orackshot also occupied houses—making eight separate and distinct houses occupied by eight separate and distinct women, all of whom were shown by the eyidence introduced in behalf of the state to be prostitutes, and each of whom were shown to be running houses of prostitution. This evidence, offered in behalf of the state, under our decisions was admissible to trace knowledge to appellant that he was permitting a house owned by him and under his control to be used as a house of prostitution.

When the state closed its evidence, appellant filed a motion asking that the state be required to elect on which one of these houses (as the indictment contained only one count) it would seek and ask a conviction. The court declined to force the state to elect, and this is assigned as error. Again, after all the testimony had been introduced both for the state and defendant, the defendant asked that the state be required to elect for which house it would ask a conviction. The court again overruled the motion and in his charge instructed the jury that, if appellant knowingly permitted “a house owned by him to be kept as a house of prostitution and a place where prostitutes were permitted to resort and reside, they would find him guilty.” Thus it is apparent by the charge given that, if the jury found that either of the eight houses occupied by the eight separate and distinct persons was a house of prostitution, they would be authorized to find the appellant guilty. Appellant complains of this charge of the court, and the failure of the court to require the state to elect upon which house it would seek a conviction, and the failure to give special charges in regard to this matter. Thus the issue is squarely presented to us in a misdemeanor case, where the indictment or information contains only one count, and the evidence for the state would sustain a conviction not only as to the one count but would sustain a conviction as to seven other separate and distinct offenses of the same character and kind, committed contemporaneously: Can the court in his charge authorize a conviction of either of the eight offenses on the one count? Doubtless it is true a conviction thus obtained, as contended by the state, would bar a prosecution for all eight of the separate and distinct offenses shown by the testimony, offered in behalf of the state, to have been committed. But the question arises even in a misdemeanor case, where the information charges only one offense to have been committed: Can the state offer evidence of eight separate and distinct offenses of the same character and kind and secure a conviction upon proof of either of the eight? Can a defendant upon an indictment charging only one offense be required to defend against eight offenses of the same character and kind?

If the indictment had charged eight separate and distinct offenses by eight separate and distinct counts in the indictment, there is no question that the defendant could have been tried and convicted on all eight counts, or such number of them as the evidence justified, this being a misdemeanor; that is, if the indictment or information charged separate and distinct offenses in separate and distinct counts, the person on trial could, if the evidence justified, be convicted' of each and all the offenses charged in the separate and distinct counts contained in the information pr indictment. Our decisions all so hold, and the text-books sustain these decisions. In a felony, of course, the rule is that the indictment must relate to but one transaction; it must charge but one offense or transaction. If the facts render it uncertain as to the offense committed in a felony, the indictment in different counts may charge separate and distinct offenses, but the counts must relate to the same transaction. In a misdemeanor this is not the rule. The indictment may charge separate and distinct offenses if contained in separate and distinct counts. Thus in a misdemeanor the indictment may charge a theft on a certain date, and in a separate and distinct count may charge another theft to have been committed on a separate and distinct date and from another and different person than that contained in the first count, and a conviction had upon either or both the counts contained in the indictment. Thus separate and distinct offenses may be charged in a misdemeanor case in separate and distinct counts, and no election required, while in a felony an election will be required if separate and distinct offenses are disclosed by the testimony. In a felony ease, while the indictment may contain separate and distinct counts to meet the proof, yet the counts must relate to the same transaction, while in a misdemeanor case, if the indictment contains two or more counts, it may relate to separate and distinct transactions, and a conviction obtained upon either or all of them in one trial if the evidence justifies.

Where an indictment or information contains but one count, charging a misdemeanor, our decisions, are not clear whether or not the state can be required to elect. In the ease of Williams v. State, 97 S. W. 498, and other cases, it has been held by this court that the state could not be required to elect, even if the information contained but one count and the evidence showed other several distinct offenses of the same character and kind. In the cases of Williams v. State, 44 Tex. Cr. R. 317, 70 S. W. 957, Larned v. State, 41 Tex. Cr. R. 509, 55 S. W. 826, Thweatt v. State, 49 Tex. Cr. R. 617, 95 S. W. 517, and other cases, it has been held error in misdemeanor cases, where the information contained but one count, not to require the state to elect upon which offense it would ask a conviction. It is thus seen our decisions are in conflict, the court in some of the cases holding it error and in other cases saying the state would not be required to elect, but the better doctrine we believe to be as laid down by Mr. Wharton: “Where a specific offense is charged, the indictment cannot be sustained by proof of a second offense even on the same day. This results from the general principles that evidence of offenses collateral to that in the indictment cannot be received, and that the issue should be single. And should it happen that the evidence discloses several successive offenses, any one of which could sustain a conviction, the prosecution (unless the charge is for a continuous offense) must elect the offense which it will pursue.” If the information contains but one count, and the evidence discloses two or more separate and distinct transactions, the state may he required to elect unless the offense is a continuous one. If the information contains two or more counts, the state will not be required to elect as 'between counts, but it may ask for and secure a conviction upon all counts. The evidence in this case showing the renting of eight different houses to as many different people, and the defendant having moved for and demanded an election at the proper time, it was error not to require the state to elect upon which transaction it would seek a conviction.

The judgment is reversed, and the cause is remanded.  