
    LEVY v. STATE.
    (No. 5245.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Vageancy <&wkey;3 — Common Prostitute— Proof.
    By statute, to constitute defendant a vagrant under tlie allegation that she was a common prostitute, it was qecessary to show that she was such, which was not done, where no witness testified as to the necessary facts of intercourse with men.
    2. Municipal Corporations <&wkey;592(4) — Paramount Character op State Law-City Ordinance.
    A city by its ordinance cannot set aside the state penal laws prohibiting houses of prostitution.
    3. Vagrancy <S=ol — House op Prostitution —Cessation op Operation.
    Where defendant in opening house of prostitution was justified so far as city authorities could justify her, and ceased to run house when notified by chief of police on May 20th that she must do so, and thereafter was not concerned in business, she was not guilty of vagrancy, through formerly running house of prostitution under complaint filed against her July 31st.
    4. Vagrancy &wkey;>3 — Evidence—Reputation as Prostitute.
    In prosecution for vagrancy by being common prostitute and running house of prostitution, testimony as to defendant’s general reputation and general reputation of some of her associates, and general reputation of houses in her part of city, held inadmissible.
    Appeal from Corporation Court, Bowie County; E. Newt Spivey, Recorder.
    Pauline Levy was charged with being a vagrant in that she w'as a common prostitute, and also with running a house of prostitution and she appeals.
    Judgment reversed, and cause remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with being a vagrant, in that she was a common prostitute, and also with running a house of prostitution. There were two other counts in the complaint, but as they were abandoned are not discussed. She was convicted either with being a common prostitute or running a house of prostitution, or both. The court enters up his judgment to the effect that she was found guilty of being a common prostitute and running a house of prostitution, and her punishment fixed at a fine of $200, and this he recites in his judgment constituted her a vagrant.

The facts relied upon by the state do not show that she is a common prostitute. No,witness testifies that she had intercourse with any man. The state upon this phase of it failed to make a ease. Springer v. State, 16 Tex. App. 591. The rule laid down in that case was followed by this court in Cox v. State, 205 S. W. 134. There was some evidence in the Cox Case to the effect that appellant had intercourse on two or three occasions, but it was held that the evidence was not sufficient in that case under the showing made by the state that she was a common prostitute. Under the statute, in order to constitute her a vagrant under this allegation of the complaint, it would be necessary to show that she is a common prostitute.

In regard to the other charge, that she was running a den of prostitution, the facts disclose that some time in April she became possessed of a house and opened a house for prostitution. This seems to have been justified on her part as far as the city authorities could do so. Of course, legally speaking, by an ordinance of the city, or by authority of the chief of police, a den of prostitution could not operate, for this would be in direct violation of the state law. The Legislature cannot authorize a city to set aside the state penal laws. This has been the subject of many decisions, as well as by express provision of the state Constitution. But she was notified by the chief of police on the 20th of May that she must cease running the house, which she did, and she testified thereafter she led a decent life, and was not further concerned in that character of business. This complaint was filed against her on the 31st of July. If she ceased this immoral life of operating a house of prostitution, as she stated, on the 20th of May, then she was not guilty as a vagrant, and could not be punished for the past acts. Vagrancy is a present condition or status, and the imposition upon society consists in the fact that she is now a vagrant, and not that she was heretofore a vagrant. This question was fully discussed and decided in Cox v. State, 205 S. W. 134. The state failed to show that she was operating a den of prostitution at the time of her arrest, or had been since notified by the chief of police on May 20th to cease. There is some evidence to the effect that there was a man in a bed in one of the rooms of the house that she owned, but there is no evidence of the fact that his being in there constituted that house one for prostitution. The state seems to have contended that because the man was in the house; and that her reputation was that of a common prostitute, therefore, they were justified, either in convicting for being a common prostitute, or for running a den of prostitution. The facts are too feeble and weak to justify sucli conclusion. She was not shown to have had intercourse with the man and She expressly denied it.

There are several bills of exception reserved to the ruling of the corporation judge wherein he admitted testimony of her general reputation, the general reputation of some of her associates, and the general reputation of houses in that part of the city. This testimony was not permissible under the allegations of this complaint. These matters have been quite frequently discussed and decided by this court, and held adversely to the ruling of the trial court. Arnold v. State, 28 Tex. App. 480, 13 S. W. 774. As to the character of her associates being inadmissible, see Holsey v. State, 24 Tex. App. 35, 5 S. W. 523, and Hudson v. State, 41 Tex. Cr. R. 454, 55 S. W. 492, 96 Am. St. Rep. 789. It has often been held that a witness cannot state in a general way that a party is a common gambler. This would only state a conclusion. The facts should be stated. This was decided in Leatherman v. State, 49 Tex. Cr. R. 486, 95 S. W. 504. For other authorities see Branch’s 2 Ann. Pen. Code, p. 736. The court should have sustained the objections to all this testimony. It was error to admit it.

The judgment is reversed and the cause remanded. 
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