
    TAYLOR v. STATE.
    (No. 7490.)
    (Court of Criminal Appeals of Texas.
    March 14, 1923.
    Rehearing Denied. April 25, 1923.)
    1. Criminal law 1169(2) — Admission of Incompetent testimony held not reversible error.
    In a prosecution for vagrancy based on the keeping of a disorderly house, though it be conceded that testimony by the chief of police that he had issued orders to check up the hotels and the people who frequented them was incompetent, held, that it was not óf a character to justify reversal where he had testified without objection as to the conduct of appellant and his wife, and had described the conduct of a particular woman on the premises whom he knew to be a prostitute.
    2. Vagrancy <g=^3 — In prosecution for keeping disorderly house, evidence of general reputation admissible.
    In a prosecution for vagrancy based on the keeping of a disorderly,house, evidence of the general reputation of the house and its inmates may be received in evidence, though it is alone insufficient to establish the character of the house.
    
      3. Vagrancy @=>.3-nIncompetent to prove by general reputation accused, was keeper.
    It is not competent to prove by general reputation that accused was the keeper of a disorderly house.
    4. Vagrancy @=>3 — Evidence that accused and wife were running hotel involved held admissible.
    In a prosecution for vagrancy based on the keeping of a disorderly house, there is no error in admitting evidence to the effect that accused and his wife were running the hotel involved.
    5. Criminal law @=>365(1) — Proof that occupant of alleged disorderly house possessed intoxicating liquor when raided held admissible as part of res gestae.
    In a prosecution for vagrancy based on the keeping of a disorderly house, proof that one of the occupants had in his possession two quarts of whisky at the time of a raid, held part of the res gestae and properly admitted, particularly in view of the fact that one of the charges of vagrancy against accused consisted of the unlawful solicitation of orders for intoxicating liquor,
    6. Criminal law .@=>469 — Chief of police may testify that inmate of alleged disorderly house was prostitute.
    In a prosecution for vagrancy based on the keeping of an alleged disorderly house, testimony by the chief of police that one of the inmates was within his knowledge a prostitute held admissible.-
    On Motion for Rehearing.
    7. Criminal law @=>453 — Testimony as to owner or controller of alleged disorderly house admissible.
    In a prosecution for vagrancy founded on the keeping of a disorderly house when it is an issue whether accused owns or controls the house, testimony by a witness that he knows who is running it and naming the party is admissible.
    8. Vagrancy @=>1 — Character determined by character, of inmates.
    In a vagrancy prosecution for keeping a house of prostitution, the character of the inmates of, a disorderly house determines that of the house itself.
    Appeal from Wichita County Court; Guy Rogers, Judge.
    Roy Taylor was convicted of vagrancy in that he was keeper of a house of prostitution, and he appeals.
    Affirmed.
    Davenport & Thornton, of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the state.
   MORROW, P. J.

The conviction is upon an averment that the appellant was a vagrant, in that he was the keeper of a house of' prostitution. Punishment fixed at a fine of $200.

It is made plain from the evidence that the appellant and his wife were keeping a certain hotel; and there is evidence that it was a house of prostitution. A recital of the details is deemed unnecessary. The chief of police testified, over objection, that he issued orders to check up on the hotels and the characters of people who frequented them. It is also shown by the statement of facts that the chief of police and his subordinates visited the hotel kept by the appellant. He described the conduct of the appellant and his wife and other parties on the premises. Among other things, he described the conduct of a woman on the premises whom he knew to be a prostitute. This testimony was not made the subject of objection, and, if it be granted that the fact that the chief of police had directed his subordinates to check up the hotels was not competent, it is not deemed of a character to justify a reversal in the light of the record.

Objection was also urged to the testimony touching the reputation of the West-land Hotel as a place of prostitution. The circumstances under which evidence of the reputation of a house may be received has often been the subject of judicial inquiry, expression, and opinion, both in this and other states. In a prosecution for keeping á bawdyhouse, evidence of the general reputation of the house and its inmates may be received in evidence. Branch’s Ann. P. C. § 1069. Such evidence in not sufficient to establish the fact that the house is a bawdyhouse, but it is admissible in aid of additional circumstances. Ramey v. State, 39 Tex. Cr. R. 200, 45 S. W. 489; O’Brien v. State, 55 Tex. Cr. R. 432, 117 S. W. 133.

It is not competent, however, to prove by general reputation that the accused was the keeper of a bawdyhouse. Allen v. State, 15 Tex. App. 320; Owens v. State, 53 Tex. Cr. R. 1, 112 S. W. 1075, 126 Am. St. Rep. 772; Machen v. State, 53 Tex. Cr. R. 115, 109 S. W. 126; and other cases listed by Mr. Branch in his Ann. Tex. P. C. p. 608. Under these authorities, the testimony touching the reputation of the Westland Hotel was apparently properly received.

There was no error in admitting evidence to the effect that the appellant and his wife were running the hotel. They were conducting it, and a number of employees testified that they were in possession of it, and Mrs. Taylor admitted in the presence of the appellant that they were conducting it.

Proof that one of the occupants of the house had in his possession.a couple of quarts of whisky we think was part of the res gestee, and its receipt was not improper. Complaint that it was proof of a separate offense seems not tenable. The person who had the whisky apparently was a guest in the house, and there is nothing in this proof which indicated that the appellant was in the unlawful possession of whisky; nor was there error in admitting the testimony of the chief of police that one of the inmates of the hotel was, within his knowledge, a prostitute. The evidence was admissible. Moreover, the same fact was proved by other witnesses without objection.

Finding no error in the record, an affirmance of the judgment is ordered.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files an urgent motion for rehearing setting up various grounds of error, each of which has been considered again by us.

We think it settled beyond necessity for discussion that, in cases wherein the charge is vagrancy founded on the keeping of a disorderly house, the reputation of the house as such may be proven by witnesses for the state who properly qualify. When it is an issue whether the accused owns or controls the house charged to be one for prostitution, and a witness states that he knows who is running the house and names such party, we are not able to appraise the weight of an objection to such testimony based on the proposition that it is a conclusion. It may or may not fall within such category. If the cook, clerk, other employee in such house, or any other person should be asked if he knew who was conducting said house and answered positively and affirmatively, we would not think it subject to such objection. If the objector be not satisfied with the knowledge of the witness, it would seem that he might protect himself under the domain of cross-examination.

Appellant again renews his complaint of testimony of the fact that on the occasion of a raid of the premises alleged to be kept as a disorderly house a man was standing in the place with a couple of quarts of whisky. The complaint in this case charged appellant with being a vagrant in many ways enumerated under the statute, and while the charge of the court limited the jury’s consideration to the question of vagrancy as made out by being a keeper of a house of prostitution, it also appeared in the complaint that he was charged with being a vagrant, to wit, a person who unlawfully solicited orders for intoxicating liquors. It would seem that evidence of the presence on the premises of intoxicating liquor would be pertinent to that portion of the charge at least, and may have been introduced prior to the election by the state of a particular part of the complaint on which it relied. Appellant's complaint in this regard seems without merit. The conduct, condition, acts, and statements of the woman Jack Smith, all tending to show her dissolute character and that she was a lewd woman and a prostitute, were admissible in support of the state’s contention that appellant’s vagrancy was based upon his keeping a house of prostitution. The character of the inmates of the house determines that of the house itself. The same thing is true of the testimony shown by appellant’s bill of exceptions No. 7.

Being unable to agree with appellant’s contentions as made in his motion for rehearing, same will be overruled. 
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