
    PENDERGRAFT v. STATE.
    (No. 10925.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    4.Criminal law <&wkey;308 — Defendant’s innocence is presumed until guilt is established beyond reasonable doubt.
    Defendant is presumed under law to be innocent until guilt is established beyond reasonable doubt.
    2. Prostitution <&wkey;3 — Indictment charging defendant held position of authority over female, abused position, and procured female to become inmate of house of prostitution, held fatally defective (Pén. Code 1925, art. 519).
    Indictment, charging that defendant “did then and there hold a position of authority over one O. P., a female person, and did then and there unlawfully abuse such position of authority and did then and there unlawfully procure said O. P. to become an inmate of a house of prostitution,” held fatally defective under Pen. Code 1925, art. 519, for failure to show means by which female was procured.
    3. Prostitution <&wkey;3 — Indictment charging procurement of female to be inmate of house of prostitution need not designate particular • house (Pen. Code 1925, art. 519).
    Indictment for pandering under Pen. Code 1925, art. 519, need not designate which house or place is meant by allegation that defendant procured female to become inmate of house of prostitution.
    4. Witnesses <&wkey;337(6) — Permitting examination of defendant'as to whether she had been convicted of theft held not error in prosecution for pandering. .
    In prosecution for pandering, permitting examination of defendant, who testified in her own behalf, as to whether she had been convicted of theft, held not error, as theft is crime involving moral turpitude.
    5. Witnesses @=345(2) — Theft is offense involving “moral turpitude,” conviction for which may be shown as affecting witness’ credibility.
    Theft involves moral turpitude, and conviction of witness for theft may be shown as affecting witness’ credibility.
    [Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Moral Turpitude.]
    6. Criminal law <&wkey;678(l) — That defendant accused of pandering may have controlled several houses of prostitution did not require state to elect as to particular house involved (Pen. Code 1925, art. 519).
    In prosecution for pandering, under Pen. Code 1925, art. 519, fact that defendant may have controlled several houses of prostitution did not make it incumbent on 'state to elect which house it would claim as one involved in alleged procurement of female to be inmate.
    Appeal from District Court, Bexar County; W. W. McCrory, Judge.
    Mary Pendergraft was convicted of pandering, and she appeals.
    Reversed, and prosecution dismissed.
    Clifford M. Forster, of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar Seeligson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of pandering; punishment, five years in the penitentiary.

The third count in the indictment on which conviction was had charges that—

“Mary Pendergraft did then and there bold a position of authority over one Opal Prince, a female person, and did then and there unlawfully abuse' such position of authority and did then and there unlawfully procure said Opal Prince to become an inmate of a house of prostitution.”

Motion was made to quash the indictment because same did not set forth the acts and omissions of the accused, by which, if any, she procured Opal Prince to become an inmate of a house of prostitution. In Kennedy v. State, 86 Tex. Cr. R. 450, 216 S. W. 1086, it is held that an indictment for pandering is not sufficient which merely charges in general terms that the accused “procured,” etc. This case has been followed since. Such allegation gives to the accused, who is presumed under the law to be innocent until his guilt is established beyond a reasonable doubt, no information as to what acts or omissions the state will rely upon in its effort to prove him guilty. In Kelley v. State (No. 10697, June 1, 1927) 296 S. W. 531, we held it sufficient to state in the indictment that the accused procured the female to become such inmate “By duress of goods,” that being one of the specific means set out in article 519 of our Penal Code defining pandering. Another specific means set out in said statute is “by abuse of any position of confidence or authority.” We think an indictment charging that the accused held a position of confidence, or that charged that she held a position of authority, over such female, and which further alleges that “by abuse of such .position of confidence,” or “by abuse of such position of authority,” procured, etc., would be sufficient. Clark v. State, 76 Tex. Cr. R. 348, 174 S. W. 354. The indictment in this case wholly fails to allege that the female Was procured by abuse of any position of authority held by appellant over such female. The indictment goes no further than to allege that appellant held such position of authority over Opal Prince, and that appellant abused same, and that she procured Opal Prince to become an inmate of a house of prostitution. It is entirely silent as to how or by what means such procuring was had. The indictment is no more specific than that held bad in the Kennedy Case, supra. The motion should have been sustained. It is to be regretted; the record reveals much revolting depravity and willingness to make merchandise of the body of said Opal Prince, who was a young girl under the age of consent.

We do not think it necessary for the indictment to specify which house or place is meant by the allegation therein that appellant procured'Opal Prince to be an inmate of a house of prostitution.

Appellant, a witness in her own behalf, was asked if she had not been convicted of theft. This was permissible. Theft is an offense involving moral turpitude. The testimony was admissible as affecting the credibility of appellant as a witness in her own case.

The testimony showing that appellant controlled several houses, and suggesting that each of said houses was used for the purpose of prostitution, does not make it incumbent upon the state to elect as among said houses which they would claim as the one whose inmate Opal Prince was procured to be. None of the other bills of exception manifest error.

Por the failure of the court to sustain the motion to quash upon the ground set forth, the judgment must be reversed and the prosecution dismissed, and it is so ordered. 
      <¡&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     