
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.
    On Rehearing, March 22, 1911.
    Rehearing Denied April 12, 1911.)
    1.Bail (§ 65) — Recognizance—Recitals— Punishment.
    A misdemeanor appeal will be dismissed where the recognizance does • not state the amount of punishment imposed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Rehearing.
    2. Criminal Law (§ 15) — Repeal of Statute,
    The vagrancy act of 1909, p. Ill, punishing as vagrants every keeper of a house of prostitution, etc., and repealing all conflicting laws, did not repeal Pen. Code, art. 361, making one who keeps a disorderly house subject to fine.
    [Bd. Note. — For other oases, see Criminal Law, Dec. Dig. § 15.]
    3. Disorderly House (§ 12) — Prosecution —Information—Identification of House.
    An information charging the keeping of a disorderly house sufficiently identified the house by alleging that it was in a certain county.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 15; Dec. Dig. § 12.]
    
      4. Criminal Law (§ 1121) — Appeai>-Statement of Facts — Evidence.
    In order to raise the question of the sufficiency of the evidence to convict, the record must, contain all of the evidence tending to show accused’s guilt.
    [Ed. Note.. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dee. Dig. § 1121.]
    5. Criminal Law (§ 1159) — Appeal—Findings— Conclusiveness.
    The Court of Criminal Appeals cannot disturb the jury’s findings as to the credibility of witnesses, or weight of their evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.}
    6. Disorderly House (§ 17) — Prosecution —Sufficiency of Evidence.
    Evidence in a prosecution for keeping a disorderly house held to sustain a conviction.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. § 17.)
    7. Criminal Law (§ 400) — Evidence—Best Evidence.
    In prosecution for keeping a disorderly house, the county clerk could testify from the stubs of receipts issued for liquor licenses, which were his only records of licenses issued, that he issued no license to accused, over an objection that his books were the best evidence of that fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 400.]
    8. Disorderly House (§ 16) — Prosecution-Flaw in Record — Admission of Evidence.
    In a prosecution for keeping a disorderly house, evidence of the general reputation of the house as a place where intoxicants were sold, and of the inmates as being prostitutes, was admissible; the extent of witness’ information as to the reputation of the house and the number of persons whom he had heard speak thereof going rather to the weight of the evidence than to its admissibility.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16,J
    9. Criminal Law (§ 784) — Instruction-Circumstantial Evidence.
    Where the evidence directly connected accused with the offense a charge on circumstantial evidence was not necessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922; Dec. Dig. § 784.]
    10. Criminal Law (§ 1120) — Appeal—Record — Bill of Exceptions — Evidence.
    Where the bill of exceptions does not state what the conversations were which are claimed to be hearsay, the question cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    
      11. Ceiminal Raw (§ 1091)—New Trial-Absence of Witness—Motion for Continuance—Necessitx..
    Where the failure to grant a motion for a new trial for absence of a witness then in the penitentiary is not presented by a bill of exception, and it is not shown that such convict was offered as a witness, or that a motion was made for continuance until he could be obtained, error cannot be predicated upon such refusal.
    [Ed. Note.—Por other cases, see Criminal Law, Dec. Dig. § 1091.J
    Davidson, P. J., dissenting.
    Appeal from Potter County. Court; W. M. Jeter, Judge.
    Bert' Wilson was convicted of keeping a disorderly bouse, and be appeals.
    Affirmed.
    Reeder & Grabam, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

This is a misdemeanor case. Tbe appellant was prosecuted on seven different counts and convicted on three, numbered 2, 4, and 6. By No. 2 be was charged with keeping and being concerned in keeping and aiding, abetting, etc., in keeping, and knowingly permitting to be kept, as owner, tenant, and lessee, a bouse, etc., in Potter county, for tbe purpose of prostitution, and where prostitutes were permitted to resort and reside for tbe purpose of plying their vocations, on April 5, 1910. And No. 4 charges substantially the same thing on April 6, 1910. No. 6 charges substantially the same thing on April 7, 1910. His punishment was assessed on each of the several counts, Nos. 2, 4, and 6, at a fine of $200 and 20 days in jail.

The Assistant Attorney General makes a motion to dismiss this appeal, among others, on the ground that the recognizance does not state the amount of punishment inflicted. This ground of the motion is well taken. See authorities cited in Merfett v. State, 135 S. W. 573 (this day decided).

The motion is granted, and the appeal dismissed.

On Rehearing.

On April 25, 1910, the appellant was proceeded against under article 361 of the Penal Code, as enacted in 1907, p. 247, by complaint and information. There were six counts in-the complaint and information. The first and second counts are as follows:

“On or about the 5th day of April, 1910, and before the making and filing of the information, in the county of Potter and state of Texas, Bert Wilson did then and there unlawfully keep and was concerned in keeping, and did aid, abet, and assist in keeping, and did knowingly permit to be kept, a disorderly house in a certain house, building, edifice, and tenement then and there situated, in this: That he, the said Bert Wilson, did then and there unlawfully keep and knowingly permit to be kept, and was concerned in keeping, and did aid, abet, and assist in keeping, said certain house, building, edifice, and tenement there situated, in which spirituous, vinous, and malt liquors were then and there sold and kept for sale, without a license first having been obtained under the laws of the state of Texas to retail and sell such liquors, and in which the said Bert Wilson then and there unlawfully sold and kept for sale and was concerned in selling, and did aid, abet, and assist in selling, spirituous, vinous, and malt liquors without having first' obtained a license under the laws of the state of Texas to retail such liquors, and the said Bert Wilson did not then and there have a license under the laws of the state of Texas to sell such liquors, and that such liquors were then and there so sold and kept for sale in a house, building, edifice, and tenement then and there owned, leased, occupied, and controlled by him, the said Bert Wilson. Against the peace and dignity of the state.

“And the said R. E. Underwood, in behalf of ,said state does further present in connection with the complaint herewith filed, at the April term of said court, that at the time and place aforesaid, on, to wit, the 5th day of April, 1910, Bert Wilson was then and there the owner, tenant, and lessee of a certain house, building, edifice, and tenement then and there situated, and as such owner, tenant, and lessee of said house, 'building, edifice, and tenement did then and there keep, and was concerned in keeping, and did aid, abet, and assist in keeping, and did knowingly permit to be kept, said house, building, edifice, and tenement as a house for the purpose of prostitution, and where prostitutes were then and there permitted to resort and reside for the purpose of plying their vocation, and such house was then and there so kept as a bawdyhouse and as a disorderly house.”

The other four counts were substantially, if not exactly, like these two, except that they charged the offense to have been committed on April 6 and 7, 1910, respectively. The appellant was convicted under counts 2, 4, and 6 only, and the penalty assessed against him was a fine of $200 and 20 days imprisonment in the county jail under each of these count's.

1. The appellant attacks the conviction, among other things, on the ground that the vagrancy act of 1909, p. Ill, repealed said article 301 under which this prosecution was had. It is our opinion that the vagrancy act did not repeal this article of the Penal Oode. We will not again here discuss this matter, as it is fully discussed in the cases of Austin v. State, 135 S. W. 1167, and Parshall v. State, 138 S. W. -, recently decided by this court, but not yet officially reported.

2. Appellant claims that the information is insufficient, and tliat Ms motion to quash it on the following grounds ought to have been sustained: That these several counts were wholly insufficient in failing to describe or identify the house or place which it is alleged was conducted as a disorderly or bawdyhouse, not even the town or. city, street, lot, or block being alleged, by or from which defendant can know where the building alleged t'o have been a disorderly or bawdyhouse is situated. The information followed strictly the form laid down in Will-son’s Criminal Procedure. It was unnecessary to further identify the house or building other than was stated in the information that it was in said Potter county. Lowe v. State, 4 Tex. App. 34; Sprague v. State, 44 S. W. 837; Stokeley v. State, 37 Tex. Cr. R. 638, 40 S. W. 971; Schulze v. State, 56 S. W. 918.

3. The appellant vigorously insists that the verdict of the jury was contrary to the evidence and not supported by it, claiming that the evidence shows that the appellant had nothing to do with keeping the second story of the building in any way, but that another ran and operated that exclusively. To sustain his contention in this respect, he does not give any of the testimony introduced against him on that subject, but refers only to the testimony offered by him in his defense.

The rule is that, when a judgment is attacked because of the insufficiency of the evidence, all of the evidence that tends to show the appellant guilty should be given, because it is from that alone that this court can pass on the legal question raised. It will not do to show that the testimony was amply sufficient to have justified his acquittal. The law makes the jury and lower court the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, and this court has no power or authority to state that the jury and lower court should have believed the appellant’s testimony, and not believed that of the state against him.

We will not undertake to give the testimony in full to show the guilt of the appellant. Much of it tends strongly to do so. It was clearly shown that J. D. Lyons was the owner of the building with which the appellant was charged with keeping, etc. That this •owner, some time before the commission of the offense, rented the whole of the building to other parties. The lower story of the building was fitted out for running a restaurant, the upper story a rooming house, furnished with beds and necessary furniture for that purpose. That the appellant bought out ■the tenants to whom the property was originally rented the latter part of February, 1910. That Savage, the party from whom •appellant had so bought, continuously thereafter and up to the trial of this case paid the rent on the lower story, though appellant operated the restaurant therein. That appellant continuously paid the rent on the rooming house from the time he bought out the previous tenant up to April 15, 1910, and he told Lyons, the landlord, that he had bought out the prior tenant and was to pay the rents therefor, and the landlord accepted him as the tenant for the second story, and received the rent from him therefor. The testimony further shows that the people downstairs (in the restaurant part) served meals upstairs, and the people upstairs seemed to be connected with the management downstairs. Sandi-fer, whom appellant claimed he had sold out to, and who appellant claims was running the upstairs, told one of the witnesses that he was working for appellant, and this witness had seen Sandifer downstairs working, and that he had stated to this witness that he was working there, and this witness testified that he thought it was all run as one from what he saw and knew of it. The testimony further shows that the cattlemen’s convention was held in Amarillo, where this house was situated, on April 5, 6, and 7, 1910, and the great preponderance of the evidence shows— in fact, it is practically undisputed, both by positive testimony, different acts, and circumstances, and the general reputation of both the restaurant part and the rooming part of the house — that they were run and operated especially during these three days as a disorderly house and as a bawdyhouse. There were several prostitutes in the house, the rooming part, during all of these three days and nights, plying their vocation, as shown by both positive and circumstantial evidence. Many drunken men were shown to be in the second story, the rooming part, during all this time, visiting, and seeing these prostitutes; that some trouble arose there, and an officer was summoned for the purpose of quieting it, and did so. The testimony further shows that the appellant was seen upstairs several times during this time; that he carried meals up there to at least one of these women; that one day while he was up there in the hall he asked one of the inmates how business was, and she told him it was fairly good. Beer was drunk in several of these rooms during this time, and many empty beer bottles were seen there by the various witnesses. Many of the men, visitors to the women up there, bought beer during this time; some of it was sold by the appellant. The appellant’s cook was up there and sold beer one of these nights. There was a beerroom in the second story in one of the rear rooms, where beer was kept on ice and sold therefrom. Another one of the witnesses testified that he knew the appellant was running the restaurant downstairs, and supposed he was also running the upstairs. Numerous witnesses testified that the general reputation of the house, both the restaurant and the upstairs, was bad, and that the reputation of both the upstairs and downstairs was that of a place where liquors were sold, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation during these particular three days, April 5th, 6th, and 7th. So that we conclude that the record shows ample evidence, both positive, circumstantial, and by reputation, that the appellant was guilty, or rather that the jury were fully authorized to so find.

4. Appellant claims that the court erred in permitting the county clerk to testify that he had issued no liquor dealer’s license to appellant of any kind, nor any transfer of any other license to him for that purpose, and that his records showed no such issuance nor transfer. The effect of the objection to this testimony was that it was inadmissible, in that the testimony showed that the defendant was not guilty of keeping or selling liquor there during that time, and the other objection is that his books' were the best evidence, and his testifying what they did not show was inadmissible. The bill shows that the clerk testified positively to the facts, and that he had with him on the witness stand the stubs of the receipts issued, or of transfers, which were his only records on that subject, and that he looked through them while so testifying on the witness stand, and that they showed no issuance of license or transfer to the appellant. There was no error in the admission of this testimony on any of the grounds claimed by appellant.

5. There are many bills, and the point is saved otherwise, to the objection of the testimony of the various witnesses as to the general reputation of both the restaurant and the rooming house as to its being a place where spirituous, vinous, and malt liquors were sold or kept for sale, and that the inmates of the house, the said women prostitutes, had the general reputation of being prostitutes. The objection to the testimony of the several witnesses as to the general reputation was because the witnesses did not show that they knew the general reputation, in that, while the city of Amarillo had a population of about 10,000 people, they had heard a comparatively small number speak of the reputation of the house and the inmates thereof on the points inquired about. The extent of the information of the witnesses, and the number of persons who had so talked about the house and inmates, was more to the weight of the testimony before the jury than as to its admissibility. The testimony of general reputation on both points was clearly admissible, as has been long established and many times decided by this court. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Eorbes v. State, 35 Tex. Cr. R. 24, 29 S. W. 784; Sprague v. State, 44 S. W. 837; Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Burton v. State, 16 Tex. App. 156; Allen v. State, 15 Tex. App. 320; Wimberly v. State, 53 Tex. Cr. R. 11, 108 S. W. 384; Moore v. State, 53 Tex. Cr. R. 559, 110 S. W. 911.

6. The appellant • asked several special charges, one of which was given, several of which were refused, and he also complains of several paragraphs of the court’s charge. The charge of the court was full and correct. The complaints of appellant thereto are not because of any special error in the charge itself, if applicable to the case, but the complaint is that it was inapplicable on the appellant’s theory of the case that the testimony showed conclusively that^he was not guilty, as claimed by his attack on the sufficiency of the evidence to convict. What we have said about the evidence shows clearly that none of these charges were improperly refused, and that the charge of the court on the grounds attacked was clearly right, and that there was no error in any of these matters complained of.

7. Another one of appellant’s complaints is that the court did not give a charge on circumstantial evidence, and erred in refusing his charge on that subject. What we have said about what the testimony shows answers this and makes it clear that, because the testimony directly connects appellant with the offense committed, a charge on circumstantial evidence was not called for, and would have been improper.

8. Appellant’s sixth bill of exception complains that the court erred in permitting the witness Margaret Reed to testify that she had a room in the rooming house over the said cafe during the cattlemen’s convention, that she received company — men—in said room, and that said Sandifer brought part of her company to said room and knocked on her door, and she testified as to conversations and negotiations between herself and said Sandifer and other persons; the other evidence showing that appellant was not present on any of these occasions. This testimony was objected to because the testimony shows that appellant had nothing to do with the said rooming house where said conversations and transactions took place, and it was not shown that the defendant knew of or was chargeable with the matters testified to, and that as to him they were hearsay.

This bill does not state what the conversations were between this witness and Sandifer. So that we cannot pass upon whether or not the conversations, if any, were hearsay. The other part of the testimony of this witness as to her staying in this house during these three days, and that she received company and plied her vocation there during this time, and that Sandifer brought part of her company to her room, and knocked on her door, was perfectly legitimate testimony against the appellant, as-amply shown by all of the testimony in this record.

9. The last ground' of appellant’s motion for new trial complains that he was deprived of the testimony of said Sandifer, because Sandifer was then under conviction and serving out his sentence for the same offense with which the appellant is here now charged. The effect of this ground of the motion, which is very lengthy and accompanied by the affidavit of said Sandifer, is that whenever he gets competent to testify that his testimony will show that the appellant was not guilty, etc. This matter was not presented by bill of exception, neither is it shown that a motion for continuance was made to await the time when Sandifer would serve out his sentence and could testify, nor was it shown that he was tendered or offéred as a witness in the case. Even if his testimony could have been admitted, the way this matter is presented it does not show any error was committed by the lower court because of the refusal of the court to grant a new trial.

We have deemed it unnecessary to take up separately each of appellant’s many assignments of error, but we have taken up the material ones, and have considered in detail, in the examination of the case, all of them. Those we have taken up and decided are the material ones, and show sufficiently that there was no error committed by any of the others not taken up specifically by us.

There being no error in the record, the judgment is affirmed.

DAVIDSON, P. X, dissents.  