
    GOOSBY v. STATE.
    (No. 4178.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <@=>814(1) — Instructions — Conformity to Information.
    Under information charging that accused, being the owner of a house, knowingly permitted it to be used for prostitution, instruction permitting conviction if accused knowingly permitted the house so to be used is erroneous for failure to conform to the allegation that he owned the house.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 19S0; Dec. Dig. <@=> 814(1).]
    2. Criminal Law <@=>402(1) — Evidence—Admissibility — Preliminary Proof.
    In a prosecution for knowingly permitting a house to be used’ for prostitution, it is not a proper predicate for oral testimony that an inmate pleaded guilty to vagrancy, and accused to disturbing the peace, for a witness to say that, he did not know where the complaint was, that he had not looked for it, and that in case of plea of guilty the complaint was usually destroyed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §' 887; Dec. Dig. <@=>402(1).]
    3. Disorderly House <@=>16 — Evidence—Admissibility.
    . Testimony that an inmate pleaded guilty to vagrancy is not admissible, unless it be shown that prostitution was the basis of the vagrancy ■charge.
    [Ed. Note. — For other eases, see Disorderly House, Cent. Dig. §§ 21-25; Dee. Dig. <@=>16.]
    4. Criminal Law <@=>869(1) — Evidence—Admissibility.
    Testimony that accused pleaded guilty to disturbing the p^ace is not admissible in the absence of proof of connection of such offense with that charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. <@=>369(1).]
    5. Disorderly House <@=>16 — Evidence—Admissibility — Reputation. ’
    The state could not show on direct examination who the persons were who told witnesses of the bad reputation of the house.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. <@=>16.]
    Appeal from Johnson County Court; B. Jay Jackson, 'Judge.
    J. T. Goosby was convicted of an offense, and he appeals.
    Reversed and remanded.
    W. B. Featherston and J. O. Lockett, both of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The charging part of the information is that, from the 1st day of June, 1915, and on each successive day from that date to the 80th day of July, 1915, appellant was then and there the owner of a certain house, and did then and there unlawfully and knowingly permit said house to be kept as a house for purposes of prostitution, and1 where prostitutes were permitted to resort and reside for the purpose of plying their vocation. , >

The evidence for the state is that Hays and his family had rented the house in question, and had Mrs. Raney there as nurse to wait on his wife, who was soon expected to be confined; that Hays and his family moved into the house' along about , the 1st of June, and vacated it about the Sd' of August. The state introduced evidence of the general bad reputation of the house, and that appellant had been seen going there on several ."occasions and coming away, and on one occasion officers went to the house, and Mrs.. Raney", was seén in a room of the house and appel; lant leaving the room’ buttoning' his 'pant's. There is evidence for the state that on one or two occasions other women were there, and they were somewhat hilarious'; some, of them were out. in the yard not fully dressed. The evidence for the defendant is to the effect that Hays had rented' the house, and' that Mrs. Raney was an inmate of thé hoüsé in the capacity of nurse for his wife, who was shortly expected to be confined. Hays and his wife testified there was no disorderly conduct or lewdness carried on in the house, and that on the occasion of the officers’ visit to the house, when it was stated appellant was seen’ coming out of the door buttoning his breeches, Hays was sleeping. on the front gallery. He testified, as did Mrs. Hays, that there was no lewdness carried on in the house, ’ and' that the house was under their control. " This is the' substance of the case. The first clause of the court’s charge states, generally, that the information charges appellant with knowingly permitting a disorderly house to be kept in Johnson county, on or about the 1st day of June, 1915, and on each successive day from that date to July 80, 1915. The second and third clauses of the charge copies two statutes with reference to disorderly and bawdy houses, and sets out all specified grounds of the statute; and the fourth clause charges that:

• “Any room or part of a building or other place appropriated or used for either of the above purposes enumerated is a disorderly house.”

The following is the court’s charge submitting the issue to the jury: l

“Now, bearing in mind the above and foregoing definition and instruction, if you believe from the evidence beyond a reasonable doubt that defendant Goosby did unlawfully and knowingly permit - to be kept as a house for purposes of prostitution, and where a prostitute or prostitutes were permitted to resort and reside for the purposes of plying their vocation, then in that event you will find the defendant guilty as charged in the information, and assess his punishment at a fine of $200, and by confinement in the county jatl for 20 days for each day he permitted, if you find he did, said house to be kept as a disorderly house.”

In the definition of the offense the court gave the following:

“Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping or aid or assist or abet in keeping a disorderly house, in any house, building, edifice or tenement owned, leased, occupied or controlled by him directly or as agent for another, or through any agent, shall be deemed guilty of keeping or being concerned in keeping or knowingly permitting to be kept, a disorderly house.”

Then the definition is given, as set out in the statute, that a disorderly house is defined to be any assignation house, or any theater, playhouse, or house where spirituous, vinous, or malt liquors are kept for sale, and prostitutes, lewd women, or women of bad reputation for chastity are employed, kept in service, or permitted to display or conduct themselves in a lewd, lascivious, or indecent manner; or to which persons resort for the purpose of smoking or in any manner using opium, and so on.

Looking at these phases of the charge and the application of them by the court, it will be readily discovered that the court authorized the conviction of appellant for any and all of the clauses therein defined, for he says:

“Now, bearing in mind the above and foregoing definition and instruction, if you believe from the evidence beyond a reasonable doubt that defendant Goosby did unlawfully and knowingly permit to be kept as a house for purposes of prostitution, and where a prostitute or prostitutes were permitted to resort,” etc., find the defendant guilty.

It is a fundamental proposition that in submitting the law of a case authorizing a conviction, the charge must conform to the allegations in the information or the indictment, and the evidence introduced supporting such allegations. Appellant was charged as the owner of the house, and that he permitted such house to be kept for the purposes of prostitution, and where prostitutes were permitted to resort and reside for the purposes of plying their vocation. In order to properly submit this case to the jury the court must confine his charge to the allegations that appellant was the owner of the house, and permitted prohibited conduct. The court authorizes a conviction without confining the jury to the alleged fact that appellant was the owner of the house. Exception was promptly taken, and special requested instructions refused. The court was in error in both instances.

Another question is presented. Appellant Objected to verbal testimony to the effect that Mrs. Raney had pleaded guilty to vagrancy on the 29th day of July, and that appellant pleaded guilty to disturbing the peace on that day. Exception was reserved and overruled. Among other things, it is urged that if the evidence was introducible, the complaint and information was the best evidence as to the fact that she was charged with vagrancy, and what part of statute was violated. Witness testified that he did not know where the complaint was; that he had not looked for it. And he further testified that in pleas of guilty they usually destroyed these pleadings. This was not a proper predicate for the introduction of the oral testimony. See Bowman v. State, 73 Tex. Cr. R. 194, 164 S. W. 846. There is nothing to show, as we understand this record, that Mrs. Raney was then living in this house, and the complaint should have been introduced to show, if it would do so, that she was charged with being a common prostitute as a basis for the vagrancy. The fact that appellant was charged with disturbing the peace would not be admissible evidence in this character of case as presented by this record. What it had to do with permitting prostitutes to reside in the house is not undertaken to be shown. This testimony should not be permitted upon another trial in the condition shown by this record.'

There is another question. A couple of state’s witnesses testified to the bad reputation of the house, and they were asked on direct examination by state’s attorney from whom they obtained such information. Each one gave the name of his informant, to the best of his recollection. Exception was reserved to this, which should have been sustained. The state is not permitted to offer this testimony in chief. The defendant may have tested the memory or credibility of these witnesses, had he seen proper to do so, by probing their means of information as a basis for their testimony for bad reputation or for their impeachment. The state cannot introduce it as original testimony in proving up its case.

For the errors indicated, the judgment is reversed, and the cause remanded. 
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     