
    HURT et al. v. STATE.
    (No. 6683.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.
    Appeal Reinstated and Affirmed June 21, 1922. Rehearing Denied Oct. 11, 1922.)
    1. Bail <®=»68 — Appeal dismissed where recognizance omitted essential concluding words.
    On appeal from a conviction, recognizance, which omitted the essential concluding words that defendants bound themselves to abide the judgment of the Court of Criminal Appeals “in this case,” was incomplete, and the appeal will be dismissed.
    On the Merits.
    2. Criminal law <©=>290 — Judgment of vagrancy not bar to prosecution for keeping bawdy-house, in absence of plea in abatement.
    Pen. Code 1911, art. 634, declares as a vagrant every keeper of a house of prostitution, and where defendants were prosecuted for keeping a bawdyhouse (Pen. Code, art. 496), in the absence of a plea in abatement, a jugment of vagrancy could not be effective to bar prosecution on the same facts in view of Code Cr. Proc. 1911, arts. 572, 573.
    Appeal from Wichita County Court, at Law; Guy Rogers, Judge.
    Mr, and Mrs. B. E. Hurt were convicted of keeping a bawdyhouse, and they appeal.
    Affirmed.
    Davenport & Thornton, of Wichita Falls, for appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   On Motion to Dismiss.

MORROW, P. J.

Conviction is for keeping a bawdyhouse. A motion is made by the state to dismiss the appeal for the reason that the recognizance is incomplete in failing to show that the parties thereto bound themselves to abide the judgment of the Court of Criminal Appeals “in this case.” The recognizance found in. the record omits the essential concluding words in the recognizance ; that is, it omits the words “in this case.” The same point has been passed on on many occasions. Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203, and other cases listed in Branch’s Ann. Texas Penal Code, § 620.

The motion to dismiss the appeal is sustained.

On the Merits.

The record having been corrected, the appeal is reinstated. Appellants are charged by information with the offense of keeping a bawdyhouse on or about the 15th day of June, 1921. They were convicted, and against each there, was assessed a fine of $200; also confinement in the county jail for a period of 20 days. The evidence going to show their guilt is uncontradicted, and quite sufficient. On the trial they made objection to certain testimony, the effect of which was to reveal that they began keeping a house of prostitution prior to the m&nth of May, 1921, the theory advanced being that on the 21st of May they had been charged in the city court of Burkburnett with the offense of vagrancy, based upon the fact that they kept a place wherein prostitutes were permitted to resort and reside for the purpose of plying their vocation, and that in consequence of the prosecution and conviction of vagrancy the state was precluded proof, on the charge of keeping a bawdyhouse, of facts antedating the trial and conviction for vagrancy. Vagrancy is defined by article 634 of the Penal Code, and among its provisions is that which declares as a vagrant “every keeper of a house of prostitution.” A bawdyhouse is defined by article 496 of the Penal Code as one kept for the purpose of prostitution, or where prostitutes are permitted to resort and reside for the purpose of plying their vocation.

The judgment of conviction for vagrancy was not pleaded in abatement, but the ease was tried on a plea of not guilty. The proof was conclusive that both before and after May 21st the appellants kept a bawdyhouse. In the absence- of a plea in abatement, the judgment of vagrancy could not be effective to bar the state in this prosecution on the same facts. Code of Crim. Proc. arts. 572, 573.

By this is not meant to intimate that under any circumstances the conviction of vagrancy would bar the prosecution for keeping a disorderly house for the reason that, in the absence of a plea in abatement, that question is not before us. This court has been referred to no authority, and is aware of none which} would support appellant’s proposition that evidence which would tend to sustain both the offense of vagrancy and keeping a disorderly house prior to the 21st day of May was not admissible. In the instant case, however, there being ample evidence that after the 21st day of May, appellants did commit-the offense of keeping a bawdyhouse, we are unable to reach the conclusion that the evidence showing that they did so before the 21st day of May was of such harmful nature, even if. inadmissible, as to justify, a reversal of the case.

It is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In their motion for rehearing appellants insist that we erred in not reversing this case because of the alleged error in admitting testimony upon the instant trial which had been substantially given upon a former trial of these appellants in a case wherein they were charged with vagrancy in a different court. The record in this case presents no plea of former conviction or former jeopardy on behalf of appellants. There being no such plea before the trial court, we could not well sustain the objection mentioned. That certain evidence had been used against the accused at some other time and place would not render it inadmissible per se. Illustrations might easily be multiplied of instances in which, such evidence would be most material. The question as to the availability of a plfea of former conviction of vagrancy, as a bar to a subsequent prosecution for keeping a disorderly house'when the time covered by the evidence in each case is the same, was not before the trial court, because there was no plea setting up such former conviction, or asking that a conviction be not permitted in the instant case. In this condition of the record there is nothing before us from which we could conclude that any error was committed by the trial court, and the motion for rehearing will be overruled. 
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