
    LOWRY v. STATE.
    (No. 7848.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.
    Rehearing Denied Jan. 16, 1924.)
    1. Disorderly house <&wkey;5 — Allegation that bawdy house was owned, etc., by defendant, not necessary.
    Under Pen. Code 1911, art. 500, making any person who shall keep a bawdy house “in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy house or a disorderly house, in any house, building, edifice or tenement owned, leased, occupied or controlled by him” guilty of a crime, it was not necessary in a prosecution for keeping a bawdy house to either allege or prove that the house alleged to have been kept by defendant was owned, leased, occupied, or controlled by defendant; such allegation and proof being necessary only in a prosecution for knowingly permitting the keeping of a bawdy house under such statute.
    2. Criminal law <&wkey;695(4) — Testimony as to reputation of house held admissible.
    In prosecution for keeping a bawdy house in violation of Pen. Code 1911, art. 500, admission of testimony that the reputation of the house alleged to have been kept by defendant was that of a house of prostitution, in response to question as to whether witness knew the reputation of the house, over defendant’s objection that the testimony was immaterial and irrelevant, held not error in the absence of an objection to the form of the question.
    3. Criminal law <&wkey;4169(2) — Admission of evidence held harmless in view of other evidence.
    In a prosecution for keeping a bawdy house in violation of Pen. Code 1911, art. 500, the admission of testimony that the reputation of the house alleged to have been kept by defendant was that of a house of prostitution, if erroneous, was harmless where the other evidence in the case was amply sufficient to establish the defendant’s guilt.
    Appeal from El Paso County Court, at Law; J. M. Denver, Judge.
    Corda Lowry was convicted of keeping a bawdy house, and she appeals.
    Affirmed.
    
      Davis, Jackson & Fryer, of El Paso, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover G. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Conviction is for keeping a bawdy house. Punishment, fine of $200 and 20 days in the county jail.

The indictment charged the keeping <5f a bawdy house, but did not allege that accused owned-, leased, occupied, or controlled the same. Appellant requested the court to charge the jury that, unless appellant owned, leased, occupied, or controlled the house which she was charged with keeping, they should acquit her, and after conviction filed a motion in arrest of judgment attacking the sufficiency of the indictment for the omission of such allegations. The requested charge and the motion in arrest are based upon the opinion in Austin v. State, 92 Tex. Cr. R. 591, 244 S. W. 1011. Our state’s attorney has called attention to the conflict between the Austin Case and other decisions of this court. Our opinions on the subject of keeping bawdy houses are confusing unless they are read in connection with the statute in effect at the time they were rendered. Prior to 1889 the law did not make it necessary to allege or prove that the keeper of the bawdy house was the owner, lessee, or tenant thereof. Killman v. State, 2 Tex. App. 222, 28 Am. Rep. 432; Lowe v. State, 4 Tex. App. 34. The amendment to this law passed by the Legislature in 1889 made it necessary to allege and prove that the alleged keeper of such house was the owner, lessee, or tenant. Lamar v. State, 30 Tex. App. 693, 18 S. W. 788; Mitchell v. State, 34 Tex. Cr. R. 311, 30 S. W. 810. The law was again amended in 1907 and is carried forward in the revision of the Penal Code in 1911 as article 500. It reads:

“Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, a bawdy house or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy house or a disorderly house in any house, building, edifice or tenement owned, leased, occupied or controlled by him, directly as agent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdy house or a disorderly house, as the case may be, and, on conviction, shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house.”

An analysis of the article in question reveals that it is only when an accused is charged with knowingly permitting the keeping of a bawdy house that it is necessary to allege and prove that the said house is owned, leased, occupied or controlled by him, but that it is not necessary to so allege or prove when accused is charged with the keeping of such house. Clifford v. State, 77 Tex. Cr. R. 204, 178 S. W. 365, Spears v. State, 89 Tex. Cr. R. 459, 232 S. W. 326, and Mosher v. State, 62 Tex. Cr. R. 42, 136 S. W. 467, are direct authority for this construction. The opinion in the Austin Case, supra, is clearly wrong, and resulted from an incomplete analysis of the statute and from a failure to have our attention called to the authorities above cited, and it is expressly overruled. It follows that the trial court committed no error in overruling the motion in arrest of judgment and in declining to give the special charge requested.

A witness for the state was asked if he Ijnew the reputation of the house with the keeping of which appellant was charged, and answered that its reputation was that of a house of prostitution. No objection was urged to the form of the question, but-was based only on the ground that it was immaterial and irrelevant. The objection as presented was properly overruled. Later appellant requested the court to withdraw this testimony from the jury on the ground, among others, that the inquiry was not as to the general reputation of said house. Exception is reserved to the failure of the court to grant this request. We think it unnecessary to discuss the matter at any length. The other evidence in the case is amply sufficient to establish the guilt of appellant as the keeper of a bawdy house, and we cannot regard the matter complained of as so serious as to require a reversal. If the objection had been to the form of the question at the time it was propounded doubtless it would have been changed to meet the criticism.

Finding no error which would call for a reversal, the judgment is affirmed.  