
    BENNETT v. STATE.
    (No. 3845.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1.Intoxicating Liquors &wkey;223 — Issues, Proof, and Variance — Time of Offense.
    In a prosecution of permitting liquor to be drunk in a disorderly house, when the time is not carved out, the state is not bound by the date alleged, but may prove any date prior to the presentment of the information and within the period of limitation.
    [Ed. Note. — l?or other cases, see Intoxicating Ifiquors, Cent. Dig. §§ 263-274; Dec. Dig. <&wkey;
    2.Intoxicating Liquors &wkey;>236 — Criminal Prosecutions — Sufficiency of Evidence.
    On a trial for permitting liquor to be drunk in a disorderly house, evidence held to show that defendant’s house was a place where lewd women and women with a bad reputation for chastity were permitted to resort.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <&wkey;> 236.]
    3. Intoxicating Liquors &wkey;>162 — Criminal Offenses — “Disorderly House” — Permitting Drinking oe Liquor.
    Under Acts 32d Leg. e. 15 (Vernon’s Ann. Pen. Code 1916, arts. 593a-593c), making it a misdemeanor to permit liquor to be drunk in a disorderly house, and defining a “disorderly house” as any house where lewd women or women of bad reputation for chastity are permitted to resort, it is not necessary to a conviction that such women be bodily present when the liquor is drunk.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 178'; Dee. Dig. <&wkey;>162.
    For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]
    4. Criminal Law <&wkey;747 — Review — Questions of Fact.
    A conflict in the testimony on a criminal trial was a matter for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1714, 1727; Dec. Dig. <&wkey;> 747.]
    5. Criminal Law <&wkey;1142> — De Facto J ud ges — Qualification—C ollateral Attack — “Officer De Facto.”
    Where the record showed the election of the special judge before whom a case was tried and the fact that he took the oath of office, and defendant went to trial without objection, it would be conclusively presumed on appeal, on a collateral attack, that he was qualified to act as such, as, even though he was not qualified, he was a de facto judge exercising the duties of his office, an “officer de facto” being a person who is such by color of election though ineligible, and the right of a de facto judge to hold his office is not subject to attack in a collateral proceeding.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3016-3037; Dec. Dig. &wkey;1142.
    For other definitions, see Words and Phrases, First and Second Series, De Facto.]
    6. Criminal Law <&wkey;1090 — Appeal—Bill of Exceptions.
    Where the contention in a motion for a new trial that the special judge before whom defendant was tried was not an attorney and could not be legally elected was in no way verified, by bill of exceptions or otherwise, it could not be considered.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.]
    7. Criminal Law <&wkey;1171 — Trial—Remarks of District Attorney.-
    In a prosecution for permitting liquor to be drunk in a disorderly house, a bill of exceptions complained that the district attorney in his argument commented on the fact that defendant’s counsel objected to defendant’s wife being asked whether defendant cared whether prostitutes came to his place or not. The surrounding facts were not shown, but it appeared that she had testified that it was only 'when there was bad behavior that any women were asked to leave. Held, that it did not appear that any injury was or could be caused, as at most the remark was but a deduction from the testimony and circumstances, and any intelligent jury would know what weight to give it.
    [Ed. Note. — Eor other cases, see Criminal Raw, Cent. Dig. §§ 3126, 3127; Dec. Dig. &wkey; 1171.]
    8. CRIMINAL Law <&wkey;721 — Trial — Remarks oe District Attorney.
    The state’s attorney may comment on accused’s failure to explain criminative facts proven against him by his wife or upon any omissions in her testimony which were legitimate to be proven.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <&wkey;>721.]
    9. Criminal Law &wkey;>713 — Trial—Remarks oe District Attorney.
    Where defendant’s counsel had several times remarked, “I want my bill,” the remark of the state’s counsel that he could have his bill when he appealed the case was not improper and did not authorize a reversal, where defendant’s right to appeal was not urged as a reason why he should be convicted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. <&wkey;> 713.]
    10. Witnesses <&wkey;286 — Examination—Leading Questions — Reereshing Recollection.
    Where, on a trial for permitting liquor to be drunk in a disorderly house, the sheriff testified that the general reputation of defendant’s place was bad, and he was asked on cross-examination the names of any persons complaining about such place, and answered that he did not remember, the district attorney was properly permitted to ask him if certain persons named did not complain, since it is permissible to ask a leading question when an omission in a witness’ testimony is evidently caused by a want of recollection which a suggestion may assist.
    [Ed.v Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. <&wkey;286.]
    11. Criminal Law &wkey;>421 — Evidence—Hearsay — General Reputation.
    An objection that such question was irrelevant, immaterial, and incompetent hearsay was properly overruled, as general reputation is necessarily based on hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. <&wkey; 421.]
    12. Criminal Law <&wkey;695 — Reception oe Evidence — Sueeiciency oe Objections.
    An objection to testimony as irrelevant, immaterial, and inadmissible for any purpose and highly prejudicial, was equivalent to no objection unless the testimony was obviously inadmissible for any purpose.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. <©=» 695.]
    13. Witnesses <&wkey;287 — Examination—Redirect Examination.
    On a trial for permitting liquor to be drunk in a disorderly house, a witness who testified concerning the general reputation of defendant’s place was asked on cross-examination if he was not one of the signers of a local option petition. On redirect examination he was asked why he signed the petition, and answered that he and others got together and decided that defendant’s place and some other places were objectionable and that they signed the petition and had an election. Held, that this question was properly permitted, as the purpose of the cross-examination was to show the witness’ animus or leaning, and the state had a right on redirect examination to- remove the inference sought to be made by defendant and show why the witness acted as he did.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. <&wkey;> 287.]
    14. Criminal Law &wkey;>1169 — Appeal—Harmless Error, — Admission oe Evidence.
    As the-witness had already testified to the bad reputation of defendant’s place, and as he did not state the result of the election or any fact which could possibly have wrongfully injured defendant’s rights, no injury was shown.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <&wkey;>1169.]
    15. Criminal Law &wkey;>1171 — Trial — Remarks oe District Attorney.
    On a trial for permitting liquor to be drunk in a disorderly house, where there was evidence that defendant’s place was what is known as a road house, the statement of the district attorney in his closing argument, that “there are more good young women gone to hell through road houses than any way that I know of,” could not have influenced the jury to find defendant guilty, and where he received the lowest penalty on a plain case of guilt no injury appeared, even though the remark was improper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. <&wkey;> 1171.]
    16. Criminal Law <&wkey;1171 — Trial — Remarks oe District Attorney.
    Before a reversal can be had on account of improper argument of state’s counsel, it must clearly appear that the remarks were improper and that they were of a material character and such as, under the circumstances, were calculated to injuriously affect the rights of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. &wkey;> 1171.]
    17. Criminal Law <&wkey;720 — Trial—Remarks oe District Attorney.
    On a trial for permitting liquor to be drunk in a disorderly house, where there was 'evidence tending to show that defendant’s house was what is known as a road house, and that it was a place where many good people at times frequented, the remark of the district attorney in his argument, that “defendant’s place is such a place where some man may take a good girl out there, where the people of that kind and character frequent,” was justified by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <&wkey;> 720.]
    Appeal from Harris County Court, at Law; Jas. Snowball, Judge.
    F. S. Bennett was convicted of an offense, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. John H. Crooker, Crim. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

No brief was filed by appellant in this cause, and, as the numerous questions presented in the record are so fairly and ably discussed in the brief filed in behalf of the state, we have adopted the brief as the opinion of the court. It is as follows:

“Appellant was convicted under the act of February 23, 1911, which is found on page 23 of the Acts of the 32d Legislature (Vernon’s Ann. Pen. Code 1916, arts. 593a-593c), and his punishment assessed at the lowest penalty, a fine of $50 and 30 days’ imprisonment in the county jail.

“It is perhaps unnecessary to quote all of said act, but the part applicable to this case is:

“ ‘Section 1. If any person, whether the owner, * * * proprietor, * * * or any other person shall * * * permit to be * * * drunk, any * * * malt liquors, whether capable of producing intoxication or not, in any * * * disorderly house * * * shall be guilty of a misdemeanor, and upon conviction such person or persons shall be punished by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days, and by a fine of not less than fifty nor more than five hundred dollars.’

“ ‘Sec. 2. A disorderly house is * * * any * * * place where * * * lewd women or women of bad reputation for chastity are * * * permitted to resort.’

“The information alleges that in Harris county, Tex., the appellant did on the 27th day of June, 1915, permit malt liquor, to wit, beer, to be drunk by Clyde Cawthon, and by Bud Drey-ling, and by several other named persons, in a disorderly house there situate, and then and there under the care, control, and management of the appellant; the said house being then and there a place where lewd women and women of bad reputation for chastity were then and there permitted to resort. No Objection was made to the information, and it is sufficient to allege a violation of that phase of the statute already quoted. Under a very fair and full charge of the court, to which no exceptions were taken, the court submitted the allegations of the information to the jury, limiting the state’s case to whether malt liquor, to wit, beer, was permitted to be drunk by Cawthon or Dreyling in the kind of disorderly house alleged,.and the defensive theory was affirmatively submitted to the jury.
“X. The date of the offense was laid generally in the information, and in a prosecution of this kind, when the time is not carved out, the state is not bound by the date alleged, but may prove any date prior to the presentment of the information which is within the period of limitation. Novy v. State, 62 Tex. Cr. R. 495, 138 S. W. 139. The state’s witnesses Cawthon and Dreyling each testified that they had bought and drunk beer at appellant’s place on and before the date alleged, and there was no controversy on this phase of the offense.
“On the other phase of the offense, that is, whether the place of appellant was a disorderly house as alleged, the state’s testimony is sufficient, if believed, to support the finding of the jury. A large number of witnesses testified that the general reputation of appellant’s place, which was known as ‘Eureka Pines,’ for being a place where lewd women and women of bad reputation for chastity, were permitted to resort was bad. In addition to this, women of that kind, as shown without controversy, testified to going to the place, and witnesses also testified to seeing inmates of the reservation— the restricted district in the city of Houston where common prostitutes live — at appellant’s place, and there was testimony that such women were permitted to dance there in the inclosure arround appellant’s resort. The inclosure also included several small ‘summer houses.’ In fact, the state’s evidence was sufficient to show that the place was what is known as a road house frequented by all sorts and conditions of people. One of appellant’s own witnesses, Hill Hinsley, in answer to appellant’s query as to the reputation of the place, testified that it was ‘as good as a place of that sort could be run,’ and on cross-examination testified to himself seeing a number of lewd women there. ,
“The mischief intended to be remedied by the statute is the permitting persons to drink strong liquors at places where lewd women are permitted to resort, and it is not necessary to a conviction that it be proven that such women were actually bodily present when the liquors were permitted to be drunk by the persons alleged.
“Appellant’s theory was that he did not know that any women of the character alleged came to his place, and that when any misbehaved he made them leave. The conflict in the testimony was, of course, a matter for the jury.
“2. The case was tried before Hon. James Snowball, who, on July 16th, a month before this case was tried, was elected special judge; the regular judge being absent. The minutes of the court showing the election of Judge Snowball and the fact that he took the oath of office is shown by the record in this case, and, as appellant went to trial without objection, it will be conclusively presumed on appeal on a collateral attack that the special judge was qualified to act as such. In the motion for new trial appellant sets up for the first time that the special judge wag not an attorney, and therefore could not be legally elected; but this contention is in no way verified by bill of exceptions or otherwise, and cannot be considered. If the trial judge was not a lawyer, and if it be conceded that he was not, on that account, qualified, yet the case proceeded to trial without objection, and he became a de facto judge exercising the duties of his office, and it is well settled that the right of a de facto judge to hold his office is not subject to attack in a collateral proceeding, nor will his right to hold the office be inquired into even in a habeas corpus proceeding brought to secure the release of a party convicted on a trial before him. Ex parte Call, Jr., 2 Tex. App. 497. An officer de facto is a person who is such by color of election, though ineligible. Ex parte Call, Jr., supra. The record of the election of Judge Snowball shows that out of 84 votes cast by the lawyers present, among whom were appellant’s counsel, he received 80 votes.
“3. Bill of exceptions No. 1 complains that the district attorney in argument to the jury commented on the fact that appellant’s counsel objected to the wife of appellant being asked whether appellant cared whether prostitutes came out to his place or not. Enough is not set out in the bill to show the surrounding facts, but it appears that she had already in effect testified that it was only when there was bad behavior that any women were asked to leave, and that so long as they behaved themselves they were not bothered in appellant’s place. For all that appears from the bill the question was legitimate, at least the bill fails to show why appellant objected to the question, and it is well settled that the state may comment on the failure of an accused to explain criminative facts proven against him by his wife or upon any omissions in her testimony which were legitimate to be proven. Locklin v. State, 75 S. W. 308. We think, taken as a whole, the bill fails to show any reason why the judgment should be reversed, because it does not appear that any injury was or could have been caused thereby. At most, the remark was but a deduction from the testimony and circumstances of the case, and any intelligent jury would know what weight to give it.
“4. Bill No. 2 complains that after appellant’s counsel had said two or three times, T want my bill,’ state’s counsel said to him, ‘You can have your bill when you appeal the case.’ The bill shows nothing which would authorize a reversal, nor does it show that, under the circumstances, it was improper. Of course, state’s counsel was contending that appellant was guilty, and appellant’s counsel was contending the reverse, and it appears from the whole of the bill that it was simply an exchange of courtesies. No intelligent jury would understand that appellant’s. counsel would want bills if he did not lose the case. State’s counsel in no way urged the fact of appellant’s right to appeal as a reason why he should be convicted.
“5. The third bill complains that the state was permitted to ask the sheriff, ‘Did Mr. Godbolt, and W. J. Hill, complain to you of the place?’ The bill is too incomplete to present anything for review, but we gather therefrom that the sheriff was asked by the appellant to give the names of any persons who comiilained about the place, and in answer to appellant’s question stated -that he did not remember. The state then was properly allowed to suggest to the sheriff the names. It is well settled that it is permissible to ask a witness a leading question when an omission in his testimony is evidently caused by a want of recollection which a suggestion may assist. Branch’s Criminal Law, § 834. This matter was brought out by appellant himself, as shown by the bill, and presents no error. The only objection made was that the testimony was ‘irrelevant, immaterial, and incompetent hearsay.’ If the statement of facts is looked to, it will be seen that the sheriff had testified that the general reputation of appellant’s place in the respects alleged was bad, and general reputation is of course based on hearsay.
“6. The fourth bill relates to the admissibility of certain testimony elicited by the state on redirect examination of the witness Godbolt, who had testified on direct examination that the general reputation of the place of appellant in the respect alleged was bad. On cross-examination, this witness was asked by appellant if it was not a fact that the witness was not one of the signers of the local option petition which was circulated in the vicinity where appellant’s place of business was, to which the witness answers in the affirmative, and on redirect examination the court, over objection of appellant, permitted the state to ask the witness why he signed the petition inquired about, and the witness answered, ‘Well, me and a lot of the residents out there got together and discussed it and decided that the defendant’s place and two or three others out there were objectionable, and we signed the petition for local option and had an election.’ The only objection made was that the explanation of the witness ‘was irrelevant, immaterial, and inadmissible for any purpose, and would be highly prejudicial.’ This objection is so general as to be equivalent to no objection unless the testimony was obviously not admissible for any purpose. We think,, however, that the testimony was clearly admissible under the authority of Oomegys v. State, 70 Tex. Or. R. 495, 156 S. W. 042, wherein a similar question was decided. The only legitimate purpose in asking the witness if he was not one of the signers to the local option petition would be to show the animus or leaning of the witness, and, if this was' the purpose, then clearly the state would have the right on redirect examination to remove the inference sought to be made by appellant and to show why the witness acted as he did.
“However, no possible injury is shown by the answer because the witness did not state the result of the election or state any fact which could possibly have wrongfully injured appellant’s rights, because he had already testified to the bad general reputation of appellant’s place, and the reason he gave for signing the local option petition is the reason that would actuate any honorable man in signing such a petition; certainly, if the witness thought appellant’s road house and the others out there were unobjectionable, he would not have signed the petition. In effect the explanation of the witness was to show the jury that he did not sign the petition for any personal animosity to appellant, and the state was properly permitted to have the witness put himself right before the jury. Comegys v. State, 70 Tex. Cr. R. 495, 156 S. W. 642; Manley v. State, 153 S. W. 1138. We think it unnecessary to cite any other authorities.
“7. The next bill of exceptions complains that the state’s counsel in the closing argument to the jury said ‘there are more good young women gone to hell through road houses than any way that I know of,’ but the bill of exceptions does not state any ground of exception thereto, nor does the bill of exceptions show the setting of the argument or in what connection it was said. It is impossible that any honest jury could have been influenced to find appellant guilty on such argument, or that any jury would have not known just what weight to attach thereto, and, as appellant received the lowest penalty on a plain case of guilt, no injury is shown, even if it be conceded that the remark was improper. It is well settled that, before a reversal can be had on account of the improper or supposed improper argument of state’s counsel, it, must clearly appear that the remarks were improper, and that they were of a material character and such as under the circumstances were calculated to injuriously affect the rights of the accused. Walls v. State, 153 S. W. 130; Davis v. State, 154 S. W. 550; Himmelfarb v. State, 174 S. W. 589; Mooney v. State, 176 S. W. 58. The bill of exceptions is so incomplete as really not to present any question for review, but in any event no such error is shown which would authorize this court to set aside the judgment in this case.
“8. The only other bill complains of the argument of the assistant district attorney to the effect that the ‘defendant’s place is such a place where some man may take a good girl out there, where the people of that kind and character frequent,’ and nothing in the bill of exceptions shows that this statement was not justified by the facts in evidence; but, if the statement of facts is looked to, it is seen that this statement is amply justified by the testimony in the case, and the other part of the bill is the in-completed part of the bill No. 2, which has already been discussed in paragraph 4 hereof. The statement of facts shows that this road house was a place.where many good people at times frequented.”

The judgment is affirmed. 
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