
    KING v. STATE.
    (No. 3877.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    1. Criminal Law <®=198 — Former Jeopardy —Time Covered.
    A complaint charging defendant with being a vagrant, in that he “did habitually loiter in and around houses of prostitution,” from the 1st of Cctober, 1914, in view of proof that he had been twice convicted, the last time on June 16, 1915, covering all time prior to that date, if good, covered only the time between that date and the filing of the complaint on October 1, 1915.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 385; Dec. Dig. @=198.]
    2. Vagrancy <@=3 — Offense — Sufficiency of Evidence.
    In a prosecution for being a vagrant, in that he “did habitually loiter in and around houses of prostitution,” evidence held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. @=3.]
    3. Vagrancy @=3 — Offense—Evidence.
    In such prosecution the admission of evidence for the state that witnesses had never seen defendant do anything or any sort of work was prejudicial error, as not bearing upon the charge, and as prejudicing the minds of the jury against him so as to deny a fair and impartial trial.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Deo. Dig. @=>3J
    Appeal from Corporation Court of Tex-arkana ; H. W. Runnels, Recorder.
    Dick King was convicted of being a vagrant, in that he habitually loitered in and around houses of prostitution, and he appeals.
    Reversed and remanded.
    N. L. Dalby, of Texarkana, for appellant. C. G. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The complaint charges appellant with being a vagrant, in that he “did habitually loiter in and around houses of prostitution.” The complaint also fixes the date as being from the 1st of October, 1914; it being sworn to on the 1st day of October, 1915. The evidence shows he had been twice convicted, once in February, 1915, and the other time on June 16, 1915; that these convictions cover all the time prior to June 16, 1915. It is also shown he was out of the state until about the last day of August. A plea of jeopardy with reference to the two former convictions was filed so as to cover the time from October 1, 1914, to June 16, 1915. If the complaint would be good, then it would only cover the time elapsing between the 16th of June and the time of the filing of the complaint, which was the 1st day of October, 1915.

Bryan, for the state, chief of police at Texarkana, testified during the month of September, 1915, he saw appellant at Lula Winn’s house of prostitution. Another policeman, named Hays, testified that he saw him there one time and in bed with Lula Winn. Ray, another policeman, testified that Lula Winn’s house was a house of prostitution, and that he saw the defendant there once in September, 1915. Tennison, another policeman, testified he saw appellant eating dinner with Lula Winn and some girls in September, 1915. The state also proved by Onie Jefries that the defendant nor Lula Winn were in Texarkana during July and most of August; that Lula Winn came bach to Texarhana on August 29, 1915, and appellant was at her house on August 30th. Another witness testified that she had seen defendant at Lula Winn’s and had opened the door for him. She was a servant or inmate. All of these witnesses put these visits in the daytime.

The defendant proved that he was employed in a pool hall and worked during the day until 10 or 12 o’clock at night This he testified to, as did the owner of the pool hall, and a witness also testified he rented appellant a room where he slept; that appellant came to his room usually between 10 and 12 o’clock at night and spent the night there; at least, he would go to bed there, and she did not see any more of him until the next morning. His roommate also testified appellant would come into his room from 10 to 12 o’clock at night and remain all night. They were occupying the same room, each paying the owner of the house $1.50 a week as room rent. The defendant says from the 16th of June until the time the complaint was filed he was at Lula Winn’s house three times, all in the daytime; once he Stayed about 30 minutes, and the other two times only a few moments; that he had worked for Mr. Robertson at the Imperial Pool Hall, and had been rooming at the Tulsa rooming house run by Mrs. Cochran. This is the room testified about by the other two witnesses. He also testified he was absent from Texarkana during July and August, getting back the last day of August. This is the case.

We are of opinion this evidence does not sustain the conviction. These witnesses place him there a few times during the month of September, and but a short time during the daytime in each instance, and the witnesses for the defendant are not contradicted as to the fact that he worked at the pool hall and was only away, as Robertson, owner of the pool hall, testified, a short time each day generally when he went to lunch. See Ellis v. State, 65 Tex. Cr. R. 480, 145 S. W. 339; Martoni v. State, 166 S. W. 1169.

Appellant reserved some bills of exception to the introduction of testimony which we believe should have been sustained. Several witnesses, over his objection, were permitted to testify that they had never seen defendant, Dick King, do anything or any sort of work. Various objections were urged to this, among others, that it was putting his reputation in evidence, was highly prejudicial, and calculated to, and did, inflame the minds of the jury against him, to the extent that they could not give him a fair and impartial trial; that he was charged only with loitering in and around houses of prostitution, and not with failing to follow some occupation. The court qualifies each of these bills substantially as follows:

“When the question was propounded to the witness by the state, the defendant objected on the ground that it was immaterial and irrelevant to any issue in this case; was highly prejudicial to the defendant, in that he was not charged with failing to work or follow some occupation.” ’

We believe these objections were well taken and should have been sustained. He was not charged with failing to work or engaging in some business, but only with loitering around houses of prostitution.

For the reasons indicated, the judgment is reversed, and the cause remanded. 
      <£=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     