
    WYATT v. STATE.
    (No. 4264.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1.Indictment and Information <3=>128 — Sufficiency — Disorderly House — Statutes.
    In an indictment for keeping and aiding and abetting the keeping of a house where prostitutes were permitted to reside to ply their vocation, two counts based on the same transaction, one charging accused with committing the offense as agent for another, and the other charging him directly with keeping, were proper; it being permissible to charge the offense to have been committed, in different counts, in any of the ways denounced by the statute.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 403 — 413; Dec. Dig. <§=>128.]
    2. Indictment and Infoemation @=132(4)— Election Between Counts.
    Where an- indictment for keeping and aiding and abetting the keeping of a house where prostitutes were permitted to reside to ply their vocation contains two counts based on the same transaction, one charging accused with committing the offense as agent for another, and the other charging him directly with keeping, the' state is not required to elect upon which count it will prosecute.
    [Ed. Note. — For _other cases, see Indictment and Information, Cent. Dig. |§ 439-443, 445; Dec. Dig. @=132(4).]
    3. Criminal Law @=598(6) — Continuance-Witness — Diligence.
    Where a motion for continuance showed that accused waited until the day before trial to have process issued to an absent witness, when no one knew the whereabouts of the witness, and did not -show effort by accused to ascertain the location of the witness, it failed to show diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig; § 1337; Dec. Dig. @=598(6).]
    4. Disorderly House @=16 — Knowledge-Evidence — Admissibility.
    In a prosecution for keeping a house for prostitutes, where accused testified that he did not know the character of the women, or that they were plying .the vocation of prostitutes, testimony of a witness that she, her sister, and another woman stayed at the house for a month, that all three were prostitutes plying their- vocation, and that accused had intercourse with her the first night she was there, and came to her room several times and stayed a while, was admissible, on question of conveying knowledge to accused of the character of the women residing at the house, and that they were plying their vocation.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. @=16.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    J. H. (I-Ieuse) Wyatt was convicted of crime, and he appeals.
    Affirmed.
    Balph P. Mathis, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HABPEB, J.

Appellant was convicted under an indictment charging him with keeping and aiding, assisting and abetting the keeping of a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation.

The court did not err in overruling the motion to quash the indictment. Both counts were based on the same transaction, one charging him with committing the offense as the agent of T. J. Leachem, and the other charging him directly with' keeping. Both counts specifically charge an offense, and it is permissible to charge the offense to have been committed, in different counts, in dny of the ways denounced by the statute. Neither is the state required to elect upon which count it will prosecute under such circumstances.

Appellant’s motion for a continuance fails to show he exercised diligence to secure the attendance of the absent witness. He waited to have process issued until the day immediately preceding the day the case was called for trial, and it is shown that no one at that time knew the whereabouts of the witness, and appellant does not show that he made any effort to ascertain the location of the witness.

The testimony of Ethel Ward was properly admitted in evidence as conveying knowledge to appellant of the character of the women resorting to and residing at the house, and the further fact they were at that house plying their vocation. Appellant testified he did not know the character of the women and did not know they were plying the vocation of prostitutes while they stayed at the house; that as soon as he ascertained that fact he put the women out of the house. Ethel Ward testified she stayed at the house for a month; that her sister and another woman also stayed at this house during all the time she stayed there; that all three were prostitutes plying their vocation, and, as carrying knowledge to appellant, she testified:

“This man Wyatt came to my room several times while I was there and stayed with me a while each time. He had intercourse with me, the first night I was up there and told me' to be quiet up there. Certainly Wyatt knew what I was doing up there at the house.”

The judgment is affirmed. 
      @=For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     