
    HODNETT v. STATE.
    (No. 6621.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1922.)
    1. Disorderly house <&wkey;5 — Instruetion authorizing conviction if accused was keeper only held erroneous.
    Under Pen. Code 1911, art. 500, relating to the keeping of disorderly houses, the state must allege and prove that accused was the owner or tenant; hence an instruction authorizing conviction if accused was keeper only was erroneous,
    2. Criminal law <®=»834(3) — Modification of defendant's requested instruction over her objection held error.
    In a prosecution under Pen, Code 1911, art. 500, for keeping a disorderly house, the modification of defendant’s requested instruction that the state must prove that defendant was the owner or tenant, so as to authorize conviction if defendant was the keeper only, over her objection, was error, in view of Code Cr. Proc. 1911, art. 737, giving both parties the right to ask written instructions.
    3. Criminal law &wkey;8l4(l) — Indictment and information <&wkey;130 — Instruction as to penalty held inapplicable to issues; different dates of keeping disorderly house may be alleged in different counts.
    Under Pen. Code 1911, art. 500, the keeping of a disorderly house is a continuing offense, and the state may allege one date and obtain one conviction with penalty for one day’s violation, or allege different days in separate counts and obtain conviction on each count sustained by proof; hence an instruction authorizing the jury to assess a fine of $200 and 20 days in jail for each day the house was kept was erroneous, where only one day was alleged in the indictment.
    Appeal from Eastland County Court at Daw; Joe H. Jones, Judge.
    Etta Hodnett was convicted of keeping a disorderly house, and she appeals.
    Reversed and remanded.
    Alexander & Baldwin, of Port Worth, Brooks & Cearley, of Cisco, and Shelton & Shelton, of Austin, for appellant. ■
    ■R. G. Storey, Asst. Atty.' Gen., for the State.
   HAWKINS, J.

Conviction is for keeping a disorderly house. Punishment, fine of $600 and 60 days in jail.

There are three counts in the indictment. The court submitted the case on the third count only. It alleged that on January 3, 1921, appellant was the owner and tenant of a certain house which she kept for prostitution. As provided in article 500, P. C., the jury were properly told that “any person who shall * * * keep * * * a disorderly house, in any house * * * owned, leased, occupied or controlled by him” should be guilty; but, when application of the law was made, the court entirely ignored the allegation that accused was the owner or tenant and authorized a conviction if the jury found appellant was the “keeper” of the house only. Appellant undertook to correct the error by a requested charge as follows:

“You are instructed that the burden of proof to show that the defendant is the owner or tenant of the house in question is upon the state, and this proof must be made by the state beyond a reasonable doubt, and unless you so believe you will acquit the defendant.”

The court declined to give the charge as requested, but over appellant’s protest changed it by inserting after the word “tenant” the words “or keeper,” which left the jury free to convict if they found she wms the “owner, or tenant, or keeper.” The trial judge should not have changed the charge as presented over appellant’s objection. Article 737, C. C. P.; Sparks v. State, 23 Tex. App. 447, 5 S. W. 135; Bradford v. State, 25 Tex. App. 723, 9 S. W. 46. As modified and given, it did not cure the error in the main charge, but emphasized it. The state was required to and did allege and therefore must prove, that the accused party was the owner or tenant. Lamar v. State, 30 Tex. App., 693, 18 S. W. 788; Chadwick v. State, 86 Tex. Cr. R. 269, 210 S. W. 397; Goosby v. State, 80 Tex. Cr. R. 136, 189 S. W. 143.

After having selected and submitted a count in the indictment which alleged only one date, viz. January 3d, the jury were- told if they found appellant guilty to “assess her punishment at a fine of $200sand by confinement in the county jail for a period o,f 20 days for each day she kept” suCh house. The verdict shows the jury fixed the punishment on a basis of 3 days’ violation. The charge of the court as to the penalty was unauthorized under the count of the indictment submitted, and the verdict and judgment not responsive thereto. Keeping a disorderly house is a continuing offense. The state may allege one date, and secure one conviction •with penalty for one day’s -violation,, ior, “where a conviction is desired for each day, the pleader may allege the different days in separate counts in the same indictment, and obtain a conviction upon each count upon the same trial, if the proof sustain the allegations.” Hall v. State, 32 Tex. Cr. R. 474, 24 S. W. 407.

Many other questions are presented in the record not likely to arise in the same form on another trial, and a discussion is preter-mitted.

For the errors pointed out, the judgment must be reversed, and the cause remanded. 
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