
    SANDERS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Indictment and Information (§ 176)— Allegations — Date.
    The date laid in an information is immaterial, and the conviction may be had upon evidence showing the commission of the offense charged at any time within the period of limitations and prior to the filing of the information.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 548; Dec. Dig. § 176.]
    2. Indictment and Information (§ 132)— Separate Counts — Single Offense.
    Where an information charging the offense of keeping a disorderly house was intended to charge only one offense as having been committed in two different ways, only one punishment is authorized; but, if each count was intended to and did charge a separate and distinct offense, a conviction might be had under all and punishment assessed for each count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449-453; Dec. Dig. § 132.]
    3. Criminal Law (§ 1099) — Appeal—Statement of Facts.
    Where a statement of facts was neither approved by the trial judge nor filed within the time required by law, it cannot be considered for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    
      4. Criminal Law (§ 1209) — Double Punishment — Separate Counts.
    Where an information consisted of two counts, the first charging defendant with keeping a disorderly house in which immoral women were permitted to reside, and the second charging the keeping of a disorderly house in which intoxicating liquors were sold without a license, and the jury found accused guilty, under each count, assessing a separate punishment, the judgment will be sustained; the information, instructions, and verdict showing that accused was found guilty of two distinct offenses and was not receiving double punishment for the same one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 3296, 3297; Dec. Dig. § 1209.]
    Appeal from County Court, at Law, Dallas County; W. E. Whitehurst, Judge.
    ' Will Sanders was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    Walker & Williams, of Dallas, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. lley-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under a complaint and information containing two counts; the first charging him with keeping a disorderly house in that he did keep a house in which prostitutes were permitted to resort and reside; the second also charging the keeping of a disorderly house in that he did keep a house where spirituous, vinous, and malt liquors were sold and kept for sale without having obtained a license. Both counts were submitted in the court’s charge, and the jury found him guilty under each count and assessed his punishment at a fine of $200 and imprisonment in the county jail for 20 days on each count.

Appellant in his brief states: “Appellant has lately learned that the trial court in this cause, by having failed to either approve or disapprove appellant’s bills of exception herein, has to a certain extent hogtied defendant, so that defendant cannot lustily kick against this double punishment.” However, further in his brief he does attempt to “lustily kick,” and, if the complaint and charge of the court are subject to the construction that he places thereon, he would be justified in so doing.

In the information it is charged appellant kept a disorderly house in two different ways on the same date, on or about the 6th day of October. However, as has been frequently decided by this court, that as to the date named it was not material to prove that exact date, as the offense can be proven to have been committed at any time within the period of limitation, two years prior to the filing of the complaint; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Temple v. State, 15 Tex. App. 304, 49 Am. Rep. 200; Stichtd v. State, 25 Tex. App. 420, 8 S. W. 477, 8 Am. St. Rep. 444; Lucas v. State, 27 Tex. App. 322, 11 S. W. 443; Blake v. State, 3 Tex. App. 149; Collins v. State, 5 Tex. App. 37.

If it was intended to charge only one offense to have been committed in two different ways, of course only one punishment would be authorized. But if each count was intended to and did charge a separate and distinct offense, then he could be convicted under each count. This rule was announced in Hall v. State, 32 Tex. Cr. R. 474, 24.S. W. 407, and has been adhered to since that date. Dancey v. State, 35 Tex. Cr. R. 615, 34 S. W. 113, 938; Scales v. State, 46 Tex. Cr. R. 301, 81 S. W. 947, 66 L. R. A. 730, 108 Am. St. Rep. 1014; Witherspoon v. State, 39 Tex. Cr. R. 67, 44 S. W. 164, 1096; Gould v. State, 147 S. W. 247; Tucker v. State, 145 S. W. 611. In this case the pleader alleges two separate and distinct offenses in separate and distinct counts, one keeping a disorderly house by permitting prostitutes to resort and reside in such house, and the other keeping a disorderly house by keeping intoxicating liquors in a house under his control. The indictment does not seek in one count to charge the offense to have been' committed in one or both ways, and it may be that appellant had two separate and distinct houses, or the evidence may have shown the offense to have been committed on separate and distinct days within the period of limitation.

The statement of facts in this case was not filed within the time permitted by law, and is not approved by the judge, consequently same cannot be considered for any purpose, but, if we could do so, E. S. Kingston and J. F. Murray tell of raiding the house owned and occupied by appellant on October 6th, and arresting 23 of the inmates, about one-half of whom were women, and whom they say were common prostitutes. J. B. Bonner tells of raiding a house occupied by appellant on July 21st, and says they found a refrigerator full of iced beer, a box of beer, and a barrel of beer, and a barrel of whisky on that occasion. So it would seem that the evidence would justify a conviction on both counts. And in the absence of a statement of facts and any bills of exception, if by any legitimate construction the judgment of the court can be sustained, it is our duty to do so, and we think it manifest when we read the information, the charge of the court, and the verdict of the jury, that appellant was found guilty of two separate and distinct offenses, and he is not receiving double punishment for the same offense.

une judgment is affirmed.  